UDD1844

The Adjudication Officer decided that Anglo Beef Processors Ireland t/a ABP Rathkeale unfairly dismissed him from his employment and awarded him compensation in the sum of “ €751.92 (2 weeks salary at €9.399 per hour x 40 hours) subject to any lawful deductions, within 6 weeks of the date of this decision.”

The Complainant appealed against the figures used by the Adjudication Officer in the calculation of the two weeks salary on which the award is based. No other aspect of the decision has been appealed.

The Respondent accepted the Adjudication Officer’s decision.

Complainant’s Case

The Complainant’s appeal is very narrow in scope. In short, he maintains that a week’s salary for him was considerably greater than the €375.96 on which the Adjudication Officer based her award.

He submits that he normally worked in excess of 40 hours per week and contends that the award of two weeks’ pay should be set at a level that fairly reflects his actual level of earnings in a typical two-week period rather than the 40-hour week relied on by the Adjudication Officer.

In support of his contention that he worked overtime he submitted P60 Certificates for the years 2013,2014 and 2015 as set out below.

Year	Salary	Insurable Weeks Employment	Weekly Pay
2013	22,813-04	48	€475.27
2014	26,809-70	52	€515.57
2015	27,822-45	51	€545.54

On this basis he submits that to rely on a basic forty-hour week to determine the award is unjust and unfair and does not reflect his average earnings whilst at work.

He contends that the award should be adjusted to reflect the true value of two weeks’ earnings.

Respondent’s Position

The Respondent submits that the Adjudication Officer’s award was fair and reasonable and should be upheld by the Court.

It submits that the Complainant’s average earnings in the 13 weeks prior to the termination of his employment averaged €361.17 per week.

It submits that there is a statutory precedent for using 13 weeks as the relevant reference period. It refers, in particular, to the Minimum Notice and Terms of Employment Act provisions in this regard.

In further submissions it stated that the Complainant normally worked 43 hours per week when averaged over a full year. It submits that the industry is subject to seasonal fluctuations where additional hours are worked at Christmas and Easter time but that there are other times of the year where fewer hours are required. It submits that the figures relied on by the Adjudication Officer are broadly in line with that level of overtime.

The Law

Statutory Instrument S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 in relevant part states:-

4. In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.

5. For the purpose of Regulation 4 of these Regulations, the average weekly overtime earnings of an employee in the relevant employment shall be the amount obtained by dividing by 26 the total amount of his overtime earnings in that employment in the period of 26 weeks ending 13 weeks before the date of the dismissal of the employee.

6. For the purpose of Regulations 5 and 7 (b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7 (b),as the case may be, of these Regulations or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.

On reviewing the decision of the Adjudication Officer it is clear that she did not calculate the Complainant’s weekly remuneration in accordance with the provisions of S.I. 287/1977 as she was required to do.

Applying the provisions of S.I. 287/1977 the Court calculated that the Complainant’s weekly remuneration at the relevant time amounts to €512.13 per week.

On this basis the Court determines that the proper award in this case is €1,024.26

Determination

The Court determines that the Complainant was unfairly dismissed and awards him compensation in the sum of €1,024.26.

The Decision of the adjudication officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19 July 2018______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.