Complainant

Respondent

Anonymised Parties

A Childcare Assistant

A Creche

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00017131-001

15/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017131-002

15/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017131-003

15/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017131-004

15/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017131-005

15/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017131-006

15/01/2018

The complainant was ‘laid off’ on August 25th 2017 and her employment terminated on November 21st 2017. She was paid €380 per week.

She says she served notice by means of Form RP 9 on November 1st 2017.

Under this procedure the respondent has one week to respond with either a reinstatement of the complainant to full employment or by making her redundant in accordance with the terms of the Redundancy Payments Acts.

The respondent did not reply.

CA-00017131-001 is acclaim for a redundancy payment. The complainant commenced her employment on March 1st 2012 and terminated on November 21st t 2017. She is paid €380 per week.

CA-00017131-002 relates to the non-payment of wages during the lay off period.

CA-00017131-003 is a claim for the non-payment of ten hours’ wages for work carried out for the respondent.

CA-0001731-004 is a claim for payment during the service of the notice period,

CA-00017131-005 was withdrawn at the hearing as it duplicates a complaint heard as part of ADJ 11711, involving the same complainant.

CA-00017131-006 is a claim for payment for Public Holidays during the notice period (The October public holiday).

The respondent says that the company got into trading difficulties which became obvious initially in May 2017.

However, it continued to operate while it made alternative plans for a new location but which required planning permission.

This was expected to come through in Mid-November but this did not materialise.

The temporary lay-off on August 25th was by agreement and it was always the respondent ‘s hope that there would be a return to normal employment by Mid November.

The respondent received an email from the complainant on October 5th requesting an update on the situation.

The respondent did not reply until October 30th offering a meeting.

It is accepted that a payment should have been made in respect of the October public holiday.

Difficulties often arise at hearings where one party or the other will complain about the lack of prior information given to them about the case they are expected to answer. Most of these are satisfactorily overcome, and in exceptional circumstances an adjournment may be given if a party’s position is genuinely prejudiced.

Leaving aside any requirements which may be placed on parties by the WRC it is both a simple courtesy and a service to fair procedure that a party should not be ‘ambushed’ at a hearing, or not provided with necessary information on which to prepare a response.

It is also, of course helpful to the Adjudicator’s preparation and case management to have in advance some information about the case to be heard.

At the hearing which considered this complaint, there were four other ADJ cases, five in total, (involving two complainants) comprising a total of twenty-six complaints, of which eight were withdrawn.

In no case were particulars provided by the complainant of her complaints, which were described, inadequately and occasionally cryptically as ‘I claim a breach of section 19 (for example) of the Act’ which is quite inadequate.

At a minimum, as part of the requirements of fair procedure, a complainant is expected to particularise their complaint. In doing so they can also avoid delay in the processing of the decision.

Regarding the redundancy complaint as will be seen below, she served notice on her employer of her intention to resign on October 27th 2017. The letter states

‘I have been on lay off since 25/08/2017. Please note that I am giving you notice of termination of my employment. My last day of employment will be 01/01/2017’.  

In fact she resigned on October 21st.

The provisions relating to lay off and redundancy are contained in sections 11 and 12 of the Redundancy Payments Act, 1979, as amended.

Section 12 reads;

12-(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless he gives notice (in this part referred to as notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short time.

Part B of the RP9 notice form provides one means to do this.

It states the qualifying criteria in relation to ‘an employee who wishes to claim a redundancy payment’ and continues;

‘An employee who wishes to terminate his/her contract of employment must give [the] employer the notice required by his/her contract…etc’

The letter sent by the complainant above meets this latter requirement but I could find no evidence of compliance with section 12 above in relation to the ‘notice of intention to claim’ a redundancy payment. While her covering letter referred in its title to ‘RP-9 form as attached’ Part B of the RP9 submitted at the hearing was blank.

The section is very clear in this regard and states that an employee ‘shall not be entitled to a redundancy payment’ unless they have served ‘notice of intention to claim’. A simple statement of intention to resign does not comply; indeed, it indicates a voluntary resignation.

Therefore, I do uphold CA-00017131-001 related to the non-payment of a redundancy payment.

CA-00017131-002 relates to the non-payment of wages during the lay off period.

The complainant submitted that in the absence of specific contractual provision for non-payment during the lay off period there is a right at common law to payment and I accept this submission. The complainant was laid off for nine weeks which, on the basis of a weekly wage of €380 she claims €3420.00.

The position regarding entitlement to payment has been dealt with in a number of cases.

In Law v Irish Country Meats (Pig Meats) Ltd [1988] ELR 266 it was held that unless there is an express or implied term permitting the lay off without pay then it is a breach of the employee’s contract of employment to do so.

One example of what might give rise to an implied term is what is known as ‘custom and practice’.

This was considered in Petkevicius v Good Concrete Ltd (In receivership) 2014 [IEHC] 66, a case involving the construction industry. In that case the claimant had been laid off without pay.

The Employment Appeals Tribunal held that;

‘The Tribunal accepts that whilst the contract does not specify that there will be no wages payable during lay-off any other interpretation would be a nonsense’.

The EAT held against the claimant. There was no term in the contract permitting non-payment of wages although there was a general provision in relation to lay off.

It was held in the High Court, by Kearns P. that;

‘Deference must be extended to the Tribunal which must be taken as knowing and being aware of the general terms that arise in the construction industry. The Tribunal stated the position and practice to be that lay-off means lay-off without pay within the custom and practice of the construction industry.’

So, this appears that an established custom and practice will constitute an implied term in this context. The EAT held that such a term existed in the construction sector.

In the current case no evidence was adduced in relation to custom and practice. It is easy to distinguish the situation in the respondent sector, nursing homes (and the position in most general employment) from that in the construction industry with its peaks and troughs, contracts starting and ending etc.

The evidence in this case was that the lay-off was an exceptional measure, anticipated in good faith to be a short-term option.

Accordingly, I can find no basis to conclude that there was any implied term (and there was no express term) to permit the lay off without payment and this complaint succeeds. The respondent stated that the layoff was ‘by agreement’ but there was no evidence that there was agreement to non-payment.

It may be generally felt that this defeats the entire point of lay off which will normally arise in response to financial or trading difficulties, and which is therefore presumed in the popular mind to be without pay.

The Payment of Wages Act, 1991 both explains why this is not the case and offers the means of achieving it lawfully.

Section 5 (1) (a) contains the general prohibition on making deductions from the wages of an employee.

Sections 5 (1) (b) however permits such deductions where;

‘it is authorised by virtue of a terms of the employee’s contract of employment included in the contract before, and in force at the time, or,

Sections 5 (1) (c)

‘in the case of a deduction the employee has given his prior consent to It’.

Read with the ‘custom and practice’ provision discussed above these represent the only basis on which wages may be lawfully withheld (other than statutory deductions).

CA-00017131-003 is a claim for the non-payment of ten hours’ wages for work carried out for the respondent. There was some suggestion at the hearing that an amount had been paid in respect of this but the payment turned out to be a tax rebate. Therefore, a payment is due of €95.00.

CA-00017131-004 is a claim for payment during the service of the notice period from October 27th until her resignation on November 21st; a further period of three weeks.

This is a more difficult question.

The complainant, still on a period of lay-off, gave her employer notice on October 27th ‘of termination of her employment’ to take effect on January 1st, 2018. What is her status in this period?

The period on which she had been laid off had come to an end, but the respondent failed to take any action to resolve the position; either to make her redundant or bring her back to work.

But the deciding question is; was she still under a contract of employment and if so do the principles outlined above about her entitlement to payment apply to this period also. I find that she was still under a contract of employment and therefore I uphold this complaint also.

CA-00017131-005, as noted above was withdrawn at the hearing as it duplicates a complaint which was heard as part of ADJ 11711, involving the same complainant.

CA-00017131-006 is a claim for payment for Public Holidays; the only one of which arises is the October public holiday. I award her one day’s pay in the amount of €76.00

I do not uphold CA-00017131-001 related to the non-payment of a redundancy payment.

I uphold CA-00017131-002 and award the complainant €3420.00 being nine weeks at €380 per week.

I uphold CA-00017131-003 is a claim for the non-payment of ten hours wages for work carried out for the respondent and I award her €95.00

I uphold complaint CA-00017131-004 is a claim for payment during the service of the notice period and award her €1,140 being three weeks at €380 per week.

CA-00017131-005 was withdrawn at the hearing and is dismissed.

I uphold CA-00017131-006 and award the complainant €76.00 being one day’s pay.

Payment for layoff, redundancy