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-00012132-001

26/06/2017

From December 13^th 2000, the complainant worked   as a part-time sales assistant in one of two jewellery shops owned by the   respondent in Dublin 22. When she   arrived at work on January 18^th 2017, she was informed that the   shop she worked in was closing down and she would no longer be required. She was paid €220 in cash as wages for that   week, but no redundancy or notice pay.   She has since received a payment in respect of statutory redundancy. Her complaint is that she has not received   the correct amount of pay in lieu of notice.

Following the shop closure, the complainant contacted her   former employers about her entitlement to notice and redundancy pay. She made a number of phone calls and on March   20^th, she received a payslip dated January 31^st.   She enquired about the amounts set out on   the payslip and was informed that, although she was paid weekly, the payslip   showed her pay for the month of January, plus other payments as follows:

Salary                   854.32               At this line, a handwritten   note says “already paid €765.”

Backpay               135.00

Holidays               61.20

Public   holidays   54.00

Notice                   2436.48

Total Gross           3,541

Less PAYE             846.65

Less USC               117.92

Net pay                 2576.43         At this line, a handwritten note   says “-€765. €1,811.53”

The complainant understands that   the amount of €854.32 is her gross pay for the first three weeks of January and   €765 is the net amount. “Backpay”   refers to arrears from working a “back week” when she started and holidays   and public holiday pay is self-explanatory.   On the payslip, the total amount due was €3,451 gross, minus   deductions for PAYE and USC of €964.57, resulting in a net amount of   €2,576.43. Another handwritten note is   inserted beside the net pay, indicating that the amount due of €2,576.43 is   minus the €765 already paid, leaving a new net payment of €1,811.43. (The handwritten note is incorrect by 10   cents).

Although the net amount due was   stated to be €1,811.53, on March 24^th 2017, just €800 was lodged   to the complainant’s bank account. She   made more phone calls to get the remaining payment, but without success and on   June 26^th 2017, she submitted a complaint to the WRC. On October 12^th, the day before   this hearing, she received a cheque from her former employer for   €1,011.43. At the hearing, she showed   me a copy of the cheque, but she was concerned that it may not be cleared by   the bank. I advised her to lodge the   cheque and to confirm to me as soon as the funds were available to her. On October 20^th, she confirmed   that the cheque had been cleared.

On May 12^th, over four months after the   termination of her employment, the complainant received a statutory   redundancy payment. Initially, she   received an amount calculated on the basis of 24 hours per week, which was   the number of hours that she worked in January. However, in general, she was rostered for   28 hours and having sought the assistance of the Information Unit at the WRC,   she was advised that her redundancy pay must be based on the hours that she   worked in the six months prior to the 13 weeks before her end date. As a result, she received an additional   payment to give her the correct amount due in redundancy pay, based on 28 hours   per week.

The respondent did not attend the hearing.

Apart from the delayed payment, there are other problems   with the manner in which this complainant’s entitlement to notice has been   handled by her former employer.

Error in the   Calculation of the Minimum Notice Payment

In the first instance, it is my view that the notice   payment of €2,436.48 stated on the payslip of January 31^st is not   correct as it is based on a 24 hour week.   Before the down-turn in the business which led to the closure of the   jewellery shop, the complainant worked 28 hours each week. Her redundancy lump sum is based on a 28   hour week and wages in respect of 28 hours must be used to calculate minimum   notice.

On this basis, I find that the complainant is entitled to   eight weeks’ pay in lieu of notice which amounts to €2,842.56 (€355.32 x 8)   and not €2,436.48. The shortfall is   €406.08.

Error in the Tax   Treatment of the Payment

The complainant said that she never received a statement   or a contract of employment and therefore, the pay in lieu of notice is   non-contractual. In effect, it must be   treated as an ex gratia payment.

For this complainant, the redundancy lump sum and pay in   lieu of notice does not reach the basic tax exemption ceiling of €10,000 plus   €765 per year of service. The payment   is therefore not subject to tax, PRSI or USC.   It would appear that approximately €800 has been deducted in error for   tax and USC.

It is my view that this complaint is well-founded. I find also that the inconvenience that the   complainant has endured, the errors in the payments and the delayed response   to her efforts to exercise her legal rights is unacceptable.

I make an order as follows:

Within six weeks of the date of this decision,

The respondent is to issue to the complainant an amended   payslip for January 2017, stating the correct amount of pay in lieu of notice   of €2,842.56 without any deductions;

The complainant is to be paid the shortfall of €406.08 in   minimum notice which is due;

The amounts for PAYE and USC which have been deducted in   error are to be refunded to the complainant.

The resolution of this error with the Revenue   Commissioners is to be the responsibility of the respondent and not the   complainant.

Pay in lieu of notice