ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003729

Complaints for Resolution:

Date of Adjudication Hearing: 12/10/2016

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 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 was employed as a Customer Service Assistant in the respondent’s delicatessen business from 1^st April, 2014 until 11^th May, 2016 when her employment was terminated. The complainant submitted that she worked an average of 35 hours per week and occasionally worked overtime. The complainant was paid a gross hourly rate of pay of €9.50 upon the commencement of her employment and this rate was increased to €10.00 per hour from September, 2015 until her employment was terminated.

The complainant submitted that approx. 2/3 months before her employment terminated on 11^th May, 2016 she became aware from a newspaper advertisement that the respondent had put the business up for sale. She claims that the proprietor of the business indicated that she was going on holidays on 29^th April, 2016 but did not return prior to the closure of the business on 11^th May, 2016. The complainant submitted that the owner of the premises where the respondent’s business was operated changed the locks on the shop on 11^th May, 2016 and that her employment was terminated on this date without any prior notice. She submitted that the business did not subsequently reopen and has not been taken over by any other entity. The complainant claims that she did not receive her statutory redundancy entitlements from the respondent following the termination of her employment.

The complainant also claims that she was not paid any wages for the final eight days of her employment (during which period she worked a total of 63.5 hours). The complainant submitted that under the terms of her contract she was entitled to receive two weeks’ notice prior to the termination of her employment. She claims that she was not afforded any notice prior to the termination of her employment on 11^th May, 2016. The complainant also submitted that she was contractually entitled to 20 days annual leave per calendar year. She claims that she did not take any holidays during the period from 1^st January, 2016 until her employment terminated on 11^th May, 2016 and therefore, is entitled to payment in lieu of the holidays accrued during this period.

Respondent’s Submission and Presentation:

The Respondent did not engage with the Workplace Relations Commission in relation to these complaints. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that its non-attendance without any acceptable explanation to be unreasonable in the circumstances.

Issues for Decision:

CA-00005500-001 – Complaint under the Payment of Wages Act, 1991

The issues for decision in relation to this element of the complainant’s claim is whether the respondent made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to (i) unpaid wages (ii) holiday pay and (iii) notice pay upon the termination of her employment.

Findings:

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, in relation to an employee, means any sums payable to the employee by the   employer in connection with his employment, including—

                                (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other                     emolument, referable to his employment, whether payable under his contract of                                       employment or otherwise, and

                                (b) any sum payable to the employee upon the termination by the employer of his                           contract of employment without his having given to the employee the appropriate                                 prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

The first element of the complainant’s claim under the Payment of Wages Act 1991 relates to a claim for unpaid wages for the final eight days she worked prior to the closure of the business. The complainant claims that she worked a total of 63.5 hours during this period in respect of which she did not receive any payment prior to the termination of her employment. The complainant gave evidence that she did not receive any payslips during her period of employment and that her normal gross weekly pay for a 35 hour week was €350 (which equates to €10.00 per hour). Based on the uncontested evidence of the complainant, I find the complainant’s claim in relation to this element of her complaint under the Payment of Wages Act 1991 is well founded and that the respondent’s failure to pay the complainant for the final eight days of her employment was an unlawful deduction from the her wages within the meaning of section 5 of the Act.

The second element of the complainant’s claim under the Payment of Wages Act 1991 relates to her claim for unpaid annual leave entitlements upon the termination of her employment. The complainant claims that she did not take any annual leave during the period from 1^st January, 2016 until 11^th May, 2016 when her employment was terminated. I note from the complainant’s contract of employment that the annual leave year runs from 1st January to 31st December each year and that she had a contractual entitlement to 20 days annual leave per calendar year. Based on the uncontested evidence of the complainant, I find that she did not avail of her annual leave entitlements during the period claimed and that she did not receive payment in lieu of this entitlement from the respondent upon the termination of her employment. Accordingly, I find the complainant’s claim in relation to this element of her complaint under the Payment of Wages Act 1991 is well founded and that the respondent’s failure to pay the complainant in lieu of her accrued annual leave entitlements upon the termination of her employment was an unlawful deduction from the her wages within the meaning of section 5 of the Act. I am satisfied from the evidence adduced that the complainant worked a total of 665 hours during this period (i.e. 19 weeks by 35 hours per week). Therefore, the complainant had accrued an annual leave entitlement of 53.2 hours during this period (i.e. 8% of 665 hours).

The final element of the complainant’s claim under the Payment of Wages Act 1991 relates to her claim that she did not receive payment of her notice entitlements upon the termination of her employment. I note that under the terms of the complainant’s contract she was entitled to two weeks’ notice prior to the termination of her employment. Based on the uncontested evidence of the complainant, I find that the complainant did not receive any notice from the respondent prior to the termination of her employment nor did she receive payment in lieu of this entitlement from the respondent. Accordingly, I find the complainant’s claim in relation to this element of her complaint under the Payment of Wages Act 1991 is well founded and that the respondent’s failure to pay the complainant in lieu of her statutory notice entitlement upon the termination of her employment was an unlawful deduction from her wages within the meaning of section 5 of the Act.

Decision:

CA-00005500-001 – Decision under the Payment of Wages Act, 1991

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.

I find the complainant’s claims under the Payment of Wages Act 1991 are well founded. Accordingly, I find that, contrary to Section 5 of the Payment of Wages Act 1991, the respondent made unlawful deductions from the complainant’s wages in relation to unpaid wages, holiday pay and notice pay upon the termination of her employment. In accordance with Section 6 of the Act, I hereby direct that the Respondent pay to the Complainant the following amounts in compensation:

• The sum of €635.00 which relates to unpaid wages for eight days (i.e. 63.5 hours by €10.00 per hour);

• The sum of €523.49 which relates to unpaid holiday entitlements (i.e. 53.2 hours by €10.00 per hour);

• The sum of €700.00 which relates to two weeks net pay in lieu of unpaid notice upon the termination of her employment.

As this redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts/PRSI.

Issues for Decision:

CA-00005500-002 – Complaint under the Redundancy Payments Acts 1967 to 2014

The issues for decision in relation to this element of the complainant’s claim is whether or not the complainant is entitled to a statutory redundancy lump sum payment in accordance with Section 7 of the Redundancy Payments Act 1967.

Findings:

The complainant gave evidence that her employment was terminated on 11^th May, 2016 following the closure of the respondent’s business on that date. Based on the uncontested evidence of the complainant, I find that the complainant’s employment was terminated by reason of redundancy following the closure of the respondent’s business on the aforementioned date.

Decision:

CA-00005500-002 – Decision under the Redundancy Payments Acts 1967 to 2014

Section 39 of the Redundancy Payments Acts requires that I make a decision in relation to any contraventions under that Act.

I find that the complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts 1967 to 2014 based on the following criteria: 

• Date of commencement: 1^st April, 2014

• Date of termination: 11^th May, 2016

• Gross weekly wage: €350.00

   

  This award is made subject to the complainant fulfilling current social welfare requirements in relation to PRSI contributions.

   

   

  Dated:   8^th December 2016