PWD1835

The cognisable period for the purpose of the Act is 13th July 2016 to the 12th January 2017.

In this Determination, the parties are referred to as they were at first instance. Hence Mc Currach UK Ltd is referred to as the ‘Respondent’ and Ian Mulcahy as ‘the Complainant’.

Background

Mr Mulcahy’s original starting date was in 2007 and in 2013 he was transferred under a transfer of undertakings into the Respondent’s employment. Mr Mulcahy was dismissed by the Respondent on the 20th October 2016 without notice. In accordance with his contract Mr Mulcahy was due nine weeks’ notice or to be paid in lieu of same. The staff handbook indicates that in the case of summary dismissal notice or pay in lieu will not apply. The Respondent accepted in the course of the hearing that the Complainant’s dismissal was not a summary dismissal.

The applicable law

Section 1 of the Act states:

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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states;

“Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Discussion

It is clear from the definition of wages set out in the Act in S1 that payment in lieu of notice falls within the remit of the Act. It is not disputed that the payment was not made nor is it disputed that their existed a contractual obligation to pay nine weeks’ notice. The Court finds that the failure to pay the appropriate payment in lieu of notice was an unlawful deduction in accordance with the Act. The decision of the Adjudication Officer is upheld. The Amount of €6,033 falls to be paid to the Complainant.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
18 December, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.