ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002562

Complaints for Resolution:

Date of Adjudication Hearing: 17th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 23^rd March 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Protection of Employees (Employer’s Insolvency) Act related to redundancy, pay and holiday pay. The complaint was scheduled for adjudication on the 17^th August 2016. The complainant was a kitchen porter and the respondent, a catering company, now in liquidation.

The complainant was in attendance at the adjudication. A representative of the liquidator also attended. The claim relates to a decision of the Department for Social Protection dated the 15^th February 2016 regarding the complainant’s entitlement from the Insolvency Fund. Pursuant to the Protection of Employees (Employer’s Insolvency) Act, he challenges the contents of the Minister’s decision. There was no appearance by or on behalf of the Department at the adjudication.

In accordance with the Protection of Employees (Employers’ Insolvency) Act, 1984 and 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 worked for the respondent between the 26^th December 2012 and the 8^th May 2015. He worked as a kitchen porter and was assigned to work in the catering departments of various institutions and companies. His employment came to an end on the 8^th May 2015 by reason of redundancy. He outlines that he has received his redundancy entitlement and this no longer forms part of this complaint.

The complainant outlines that the Department has miscalculated and undervalued his entitlement to unpaid wages from the Insolvency Fund for work he performed for the respondent employer, now in liquidation. The amount the complainant states he is entitled to in unpaid wages is €983.15. This arises from the hours he worked between the 27^th April and the 8^th May 2015, where he worked a significant amount of hours. He had submitted records of these hours as part of his claim. The Department, however, had carried out a calculation according to the average number of hours per week worked by the complainant during the entire course of his employment. He said that his average weekly earnings had been €267.74. He outlined that the weekly hours he worked would vary and sometimes he received no hours at all. He acknowledged that he had been paid €535.48 in unpaid wages, but stated that his total entitlement was €983.15.

In respect of holiday pay, the complainant said that he was entitled to €821.43 but received only €391.76. This covers the period of the 1^st January 2014 and the 8^th May 2015. He had calculated his entitlement by taking 8% of his pay slips. He had availed of periods of annual leave in February and May 2014, but had not availed of any annual leave in 2015. He outlined that the Department had excluded part of his entitlement to holiday pay on the basis that his contract of employment did not allow him carry over unclaimed leave. The complainant denies that this is the case and refers to the Organisation of Working Time Act and the statutory basis for carrying over leave. In respect of the redundancy claim, he stated that he was in a position to withdraw this element of his complaint. In respect of the time it took him to refer this complaint, he referred to health issues he had faced and the need to pay college fees. He had been addressing these issues before he could further this matter.

Respondent’s Submission and Presentation:

The representative of the liquidator outlined that it had been appointed by the High Court on behalf of Revenue. At the time of this appointment, a receiver had also been appointed on foot of a floating charge, later found to be invalid. The documents prepared for the complainant had been done by the receiver and not by the liquidator. He outlined that a claim had been submitted by the receiver and he noted that no minimum notice claim had been made.

Findings and reasoning:

This is a claim pursuant to the Protection of Employees (Employer’s Insolvency) Act challenging a determination made on behalf of the Minister for Social Protection regarding his entitlements. At the outset, the complainant raises entitlements to pay, holiday pay and redundancy; in advance of this hearing, the redundancy was paid and a matter that now does not require adjudication.

The complainant seeks to challenge a decision of the Department communicated to him on the 15^th February 2016. Given that his claim was submitted on the 23^rd March 2016, the complainant is clearly within the six-month time period provided by section 9 of the Protection of Employees (Employer’s Insolvency) Act, as amended by the Workplace Relations Act, 2015. This case is complicated by the involvement of both a receiver/manager and liquidator, separately appointed to deal with the respondent’s affairs on its insolvency.

Addressing the substance of the pay complaint, I find that it is well founded. Section 6(2)(a)(i) of the Protection of Employees (Employer’s Insolvency) Act provides that a complainant may recover “any arrears of normal weekly remuneration in respect of a period or periods in aggregate, not exceeding eight weeks, and to which the applicant became entitled during the relevant period.” The complainant seeks recovery of pay for hours worked in the period of 27^th April and the 8^th May 2015, a total amount of €983.15. Applying the wording of section 6(2)(a)(i), he is entitled to recovery of arrears in pay owed to him, up to a maximum of eight weeks. I find that the actual amount of arrears owed to him for the period of two weeks is €983.15. In the declaration below, I acknowledge that the complainant has already received €535.48, leaving an amount owed of €447.67.

In respect of holiday pay, the complainant claims €821.43 and states that he received payment of €391.76, leaving €429.67 outstanding. Section 6(2)(a)(iv) provides that an employee may recover “any holiday pay in respect of a period or periods of holiday not exceeding eight weeks in all, and to which the applicant became entitled during the relevant period.” Section 6(9) goes on to define “relevant period” as “means in relation to a debt to which this section applies, the period of 18 months immediately preceding the relevant date.” Correspondence from the Department refers to the complainant’s contractual entitlement to annual leave for the current leave year; he replies that under the Organisation of Working Time Act he has six months from the end of a leave year to seek recovery of unclaimed annual leave and that he is able to carry over leave.

Taking the wording of section 6(2)(a)(iv) as provided in the statute, it appears to me that the complainant is entitled to recover holiday pay due in the 18 months that precede the “relevant date”. According to section 6(9)(b)(i), the relevant date in this case is the 8^th May 2015, the date of termination of employment. I do not see any basis for a contract of employment being able to negate this statutory provision. The complainant provided a spreadsheet of his holidays over 2014 and 2015. He said that he had taken week-long periods of annual leave in February and May 2014.

The receiver prepared the IP1 form, claiming arrears in holiday pay of €821.43 for the period of the 1^st January 2014 and the 8^th May 2015, i.e. within the 18 months provided by section 6(9). Given that I find that the complainant is entitled to go beyond the “current leave year” or the year of 2015, I find that his claim is well founded. In the declaration, I have taken account that the complainant has already received €391.76.

Declaration:

I find that the complaint is well founded and I declare that the Minister is liable to pay to the complainant the amounts of €983.15 in pay (noting that the complainant has already received €535.48, leaving an amount owed of €447.67) and €821.43 in holiday pay (noting that the complainant has already received €391.76, leaving €429.67 outstanding). For the sake of clarity, I declare that the complainant shall be paid the amounts of €447.67 and €429.67, i.e. a total of €877.34.

Dated:   24^th January 2017