ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004196
Complaints:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act 1973 |
CA-00005188-001 | 14/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 |
CA-00005188-002 | 14/06/2016 |
Date of Adjudication Hearing: 06/03/2017
Workplace Relations Commission Adjudication Officer: Aideen Collard
Location of Hearing: Lansdowne House, Ballsbridge, Dublin 4
Procedure:
The aforesaid complaints under Section 11 of the Minimum Notice & Terms of Employment Act 1973 and Section 6 of the Payment of Wages Act 1991 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 14th June 2016. In accordance with Section 41(4) of the Workplace Relations Act 2015, the Director General referred these complaints to me for adjudication and they were initially scheduled for hearing on 23rd January 2017. When there was no appearance on behalf of the Respondent and it came to my attention that it had been notified of the hearing date at its place of business which had closed down as confirmed in a letter from the landlord, I was not reasonably satisfied that the Respondent had been properly notified of the hearing. I also became aware that correspondence from the WRC to the Respondent at this address was returned undelivered and marked ‘Gone Away’. The hearing was rescheduled for 6th March 2017 and a letter dated 2nd February 2017 to the Respondent at its registered address issued, confirming the venue, date and time of the hearing. I proceeded to hearing on 6th March 2017 and gave the Parties an opportunity to be heard and to present any relevant evidence. There was no appearance on behalf of the Respondent. Before proceeding to hearing, I confirmed that it had not made any application for an adjournment, indicated any difficulty attending or otherwise engaged with the WRC. I also made enquiries as to the Respondent’s whereabouts with reception. All the documentation referred to and relied upon by the Complainant was furnished before or at the hearing. All evidence presented along with the relevant statutory provisions have been taken into consideration within this decision.
Background:
The Complainant is seeking compensation in respect of the Respondent’s non-payment in lieu of her minimum notice entitlement and outstanding wages including annual leave, when the Convenience Shop where she worked as a Sales Assistant closed down suddenly and without warning on 11th March 2016.
The Complainant gave direct evidence confirming that she had worked for approximately 12 years from 19th April 2004 until 11th March 2016 as a Shop Assistant in a Convenience Shop. At the time of termination of her employment, she worked 24 hours a week at €12 per hour or €288 gross per week and was paid fortnightly. The Shop in question was part of a Retail Chain and subject to a franchise at all material times. During the course of that period of time, her employment was transferred between four different limited companies and/or legal entities. The Complainant also confirmed that at all material times, she was doing the same job using the same equipment in the same premises which did not close on any occasion prior to 11th March 2016. After receipt of her original contract in 2004, she had never received an updated contract of employment but had been verbally assured by all the employers concerned that her continuity of service was recognised and protected upon each transfer. She is not aware of any break in service and/or non-reckonable period during the course of her employment. However, when she sought payment of her statutory redundancy (subject to another complaint to the WRC, Reference Number ADJ-00002453) from the Department of Social Protection, it came to her attention that her second last employer may not have made all the requisite PRSI contributions on her behalf for a period in 2013-2014. As this matter is currently under investigation by the Department, it is delaying payment of her statutory redundancy. She said that employer in question had also attempted to unilaterally cut her hours and it was only following complaints to NERA and the Rights Commissioner as confirmed with documentation furnished, that it had desisted with this course. She submits that any shortcomings in her PRSI contribution record can only be explained by the failure of the employer in question to make the necessary contributions on her behalf.
The Complainant also gave direct evidence confirming that prior to its sudden closure, it was clear that the Convenience Shop in question was not being run very well by her current employer, the Respondent, citing various examples. She confirmed that she had finished her shift as normal on 11th March 2016 and when she called to the Shop the following day to collect her wages as usual, to her surprise it was closed and the shutters were down. She contacted the Manager who confirmed that the business had ceased trading but he would try and get her wages to her. However, his number became uncontactable and neither he nor the Acting Manager responded to any of her attempts to make contact. Neither had the Respondent’s Directors contacted her regarding discharging her wages, annual leave, minimum notice and redundancy and she was never furnished with a P.45. A letter dated 16th March 2016 from the landlord who leased out the Shop in question confirmed that the business had ceased trading, that he was unable to make contact with the lessee (Complainant’s former Manager) and that the Complainant was unemployed as a result.
No Notice or Pay in Lieu under Minimum Notice & Terms of Employment Act - CA-00005188-001
Summary of Complainant’s Case:
In relation to this specific complaint, the Complainant confirmed that she had not received any notice or pay in lieu of her minimum notice entitlement under Section 4 of the Minimum Notice & Terms of Employment Act 1973. As she had approximately 12 years service, she seeks payment of her entitlement to six weeks pay @ €288 gross per week in lieu of her statutory minimum notice totalling €1728 gross.
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.
Findings and Conclusions:
It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.” Section 4(2) sets out the periods of minimum notice to be given by an employer to terminate the contract of employment of an employee based upon years of service. Section 4(2) provides: “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be- (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,”. Section 11 provides for the referral of complaints arising from a contravention of Section 4 to the WRC. Finally, Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral.
Applying the aforesaid statutory provisions to the facts adduced, I am satisfied on the balance of probabilities that: (1) this complaint was brought within the requisite six-month time period from the date of contravention on 11th March 2016, (2) that the Complainant had the requisite continuous service for a period of thirteen weeks or more required to bring a claim under the Minimum Notice & Terms of Employment Act 1973, (3) that she had more than ten years but less than fifteen years’ service based upon her unrebutted evidence and as supported by the documentation furnished. (In so finding, I acknowledge the role of the Department of Social Protection in determining insurable employment and trust that this will be of assistance if determining same), and (4) that the Respondent failed to give the Complainant six weeks’ notice of the termination of her employment or payment in lieu totalling €1728 gross.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. As specified by Schedule 6, Section 12(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” I therefore direct the Respondent to pay the Complainant six weeks’ remuneration, being the loss sustained by reason of the contravention in the sum of €1728 gross (less any lawful deductions).
Non-payment of Wages & Annual Leave under the Payment of Wages Act - CA-00005188-002
Summary of Complainant’s Case:
At the time of the sudden termination of the Complainant’s employment, she gave evidence confirming that she was owed two weeks’ wages @ €288 per week amounting to €576 and two weeks’ annual leave @ €288 per week amounting to €576, totalling €1152 gross which was never discharged by the Respondent. The Complainant seeks compensation in respect of same under the Payment of Wages Act 1991.
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.
Findings and Conclusions:
It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 1 of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as including: “…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,…” I am therefore satisfied that the outstanding wages and annual leave claimed fall within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act. In relation to the shortfalls alleged, Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” Section 6 of the Act provides for the referral of complaints arising from a contravention of Section 5 to the WRC. Finally, Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral.
Applying the aforesaid statutory provisions to the facts adduced, I am satisfied on the balance of probabilities that: (1) this complaint was brought within the requisite six-month time period from the date of contraventions on 11th March 2016, (2) that the Complainant was in insurable employment with the Respondent at the material time (subject to any investigations deemed necessary by the Department of Social Protection), (3) based upon her unrefuted evidence which I found to be credible and was also supported with documentation including payslips and P.60’s, as at the time of termination she was owed outstanding wages of €576 gross and accrued annual leave of €576 gross totalling €1152 gross.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. As specified by Schedule 6, Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as considered reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” Had the complaint in respect of non-payment of annual leave been made under the Organisation of Working Time Act 1997, I would have had jurisdiction to award an additional sum of compensation for breach of that Act. However, any such amendment is not required as Section 6 of the Payment of Wages Act 1991 allows latitude for an award of up to twice the outstanding amount if it exceeds the net wages payable in the week preceding the deduction. As the two sums due and owing in the instant case, each of €576 totalling €1152 gross clearly exceed the net wages payable to the Complainant in the week preceding the deduction (as evidenced by her payslips), I consider it reasonable to exercise such latitude in this particular case given the wholly unsatisfactory manner in which the Respondent has failed to discharge same. I therefore direct the Respondent to pay the Complainant compensation in the sum of €2000 (subject to any lawful deductions).
Overall Award:
Overall and for the avoidance of doubt, the Respondent is ordered to pay a total of €3728 gross (subject to any lawful deductions) in compensation to the Complainant, comprising of €1728 in relation to her complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973 and €2000 in respect of her complaints under Section 6 of the Payment of Wages Act 1991.
Dated: 02/06/2017
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Minimum Notice & Terms of Employment Act 1973 - Payment of Wages Act 1991 - Protection of Employees (Employers’ Insolvency) Act 1984 Continuous Service - Compensation - Insolvency Payments