ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002996

Parties:

	Complainant	Respondent
Anonymised Parties	A Security Officer	A Security Company

Representatives

P.J. Byrne & Co, Solicitors

Complaint(s):

Act	Complaint/Dispute 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-00004022-001	22/04/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00004022-002	22/04/2016

Date of Adjudication Hearing: 13/03/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Location of Hearing: Seven Oaks Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 , section 6 of the Payment of Wages Act, 1991 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

(Related claims: This Adjudication is closely linked to Adjudication 3001 and Adjudication 5622 – All three Cases were held jointly)

Summary of Complainant’s Case: CA-00004022-001

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00004022-001
The Complainant was made redundant in May 2015. While he received his Redundancy payments he did not get any Notice pay (6 weeks). As the Respondent had been “struck off” on the 15^th February 2015 he had not made any claims as he believed that the Company had ceased to exist and any claim would be pointless. However he is now aware that the Revenue Commissioners have moved successfully in the High Court to have the Company reinstated in January 2016. Accordingly he is now (22/04/2016) lodging his claim and is pleading, in relation to the time grounds, extenuating circumstances as outlined.

Summary of Complainant’s Case: CA-00004022-002

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00004022-002	22/04/2016
The Complainant was made redundant in May 2015. On the 15^th May 2015 the Complainant had been owed 2 weeks pay for the weeks ending 8th May and to the 15^th May inclusive – a sum of € 726. As the Respondent had been “struck off” on the 15^th February 2015 he had not made any claims at the time as he believed that the Company had ceased to exist and any claim would be pointless. However he is now aware that the Revenue Commissioners have moved successfully in the High Court to have the Company reinstated in January 2016 Accordingly he is now (22/04/2016) lodging his claim and is pleading extenuating circumstances, in relation to the time grounds, as outlined.

Summary of Respondent’s Case: CA-00004022-001

The Complainant was clearly notified of the financial difficulties of the Company in February 2015. The Owner gave the staff a comprehensive verbal briefing and the eventual closure can not have come as a surprise. At the time he was trying to make financial arrangements to ensure that the employment of the Complainant and his colleagues was continued. The Complainant is not due any notice pay as he clearly knew that the company was in serious difficulties and he effectively “worked” his notice.

Summary of Respondent’s Case: CA-00004022-002

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00004022-002	22/04/2016
Following the closure of the Company on the 15^th May 2015 the Respondent made personal cash payments amounting to the Complainant for the period in question. There was no evidence available for these payments save his personal bona fides that they were made.

Findings and Conclusions:

Opening Observations: Informality /Lack of Formal Procedures.

This case including the two complaints referenced was characterised by an extra ordinary degree of informality in the operation of the business. It appeared to run on the basis of personal relationships between the owner/founder, his daughter acting as a type of Operations Manager and individual staff members.

Key Facts / Discussions in regard to both claims.

The major key fact, that was clear, was that the Complainant had received, by his own admission a Redundancy payment, based on an exit date of the 15^th May.

In other words his Redundancy payment was based on his paid service to the exit date. This was not contested.

On this basis I found a claim for non Payment of Wages for the four weeks prior to the Redundancy date somewhat strange. The claim form from one of the colleagues, (it was understood that they had all claimed together) was dated the 25^th of June 2015 and was a claim on the Social Insurance fund – effectively the Employers Insolvency fund.

In this context I found the assertion that “He had no one /no business to claim from” hard to understand. The submission of a new claim under both Acts when the Revenue had Reinstated the Company, for what seemed to be a procedural Tax Return matter, appeared somewhat opportunistic.

If a claim could be made on the Redundancy Social Insurance fund on the 25^th June 2015 there was no reason I could see, on reflection, why a Payment of Wages Claim and a Minimum Notice claim could not have been filed on the same or a close by date. The Complainant, while not professionally represented at the Oral hearing, had been advised of his rights by the Citizens Advice Service, and was represented at the hearing by a former work colleague who presented the case very competently and displayed a good knowledge of the relevant Legislation.

In relation to the Payment of Wages claim the Respondent made a very strong plea that he had paid cash lump sums to the employees –effectively under the radar payments that he had personally financed by means of a personal loan from another family member. It was admitted that there was no way of proving that these payment shad been made; leaving aside any considerations as to how they had been reconciled with the PAYE System. One payment was acknowledged by the Complainant –this had been made apparently on or round the 15^th May at a “closure” meeting between the Owner and all the employees.

The Respondent /Owner was, at the time of the hearing, clearly under medical supervision and his remarks appeared sincere.

Accordingly, having reflected on the evidence I came to the following conclusions.

Minimum Notice & Terms of Employment Act, 1973 CA-00004022-001

On the basis of the Redundancy claim being lodged on or about the 25^th June 2015 I did not find that there were reasonable grounds to grant an extension of time beyond six months from the 15^th May 2015 for the Minimum Notice claim. The claim is out of time and is dismissed.

Payment of Wages Act, 1991 CA-00004022-002

For the reasons stated above re CA-00004022-001 I found the claim to be out of time and is accordingly dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 6 of the Payment of Wages Act,1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.


Act	Complaint/Dispute Reference No.	Decision
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00004022-001	Claim dismissed as out of time
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00004022-002	Claim dismissed as out of time.

Dated: 26^th May 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words: