ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012782
Parties:
| Complainant | Respondent |
Anonymised Parties | A Service Engineer | A Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00017016-001 | 24/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00017016-002 | 24/01/2018 |
Date of Adjudication Hearing: 26/03/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 24th of January 2018 was submitted within the six months allowed after the termination of employment (which occurred on the 28th of July 2017).
Background:
The Complainant has brought two claims under the Payment of Wages legislation though in fact has only one cause for complaint against his employer whom he says did not pay him his Contractual Notice. |
Summary of Complainant’s Case:
The Complainant gave evidence that he was employed for three years with the Respondent company. He tendered his resignation at the end of June 2017 (circa the 30th). The Complainant did not tender his Notice in writing as he is obliged to do in the Contract. The Notice was not sought in writing and there does not seem to be any doubt that the Notice was tendered and the Complainant was serving out his Notice. |
Summary of Respondent’s Case:
The Respondent case was that the Complainant’s Notice period was reduced by two weeks as there was no work for him and that the complainant was invited to end early and on a voluntary basis. |
Findings and Conclusions:
The Complainant gave evidence that he was employed for three years with the Respondent company. He tendered his resignation at the end of June 2017 (circa the 30th). The Complainant did not tender his Notice in writing as he is obliged to do in the Contract. The Notice was not sought in writing and there does not seem to be any doubt that the Complainant intended leaving the workplace. The Complainant pursuant to the terms of his contract of employment was obliged to give a one month notice period before leaving. The Complainant and his employer therefore knew or understood that the Complainants would work until the 28th of July if he was to work out his entire Notice period. The Respondent submitted a statement from the Complainant’s line Manager. The content of this Statement was not disputed, and it appears that the line Manager (TH) was the person with whom the Complainant had had most of his dealings coming up to the end of his employment. Neither the Managing Director nor the Financial Director had been dealing directly with this matter as it was unfolding in July of 2017. In the middle of July 2017, the Complainant’s line manager gave the Complainant the choice to stay on in the workplace until the end of his Notice Period or to leave early – on the 14th of July. There was a reasonably quiet period being experienced in the workplace and the Line Manager had already decided not to involve the Complainant in any new projects as this only became awkward when it came to his leaving the workplace at the end of the month. I am satisfied that the issue of Notice payment in lieu was not addressed by the parties at this time. I am also satisfied that there was no express waiver given by the Complainant to forgo his Notice entitlements as is envisaged when it comes to Statutory Notice under the Minimum Notice and Terms of Employment Act 1973. In fact there was silence on the issue of Notice and when the Complainant agreed that he would cease work two weeks in advance of his Notice period he had no understanding that the company intended to not pay him for his Notice period and that the company had determined that he had voluntarily elected for this outcome. On balance, I would have to find that the company had no entitlement to deduct the Notice payments which formed part of the Contract of Employment. It would be wholly inappropriate to allow the employer to avoid making this payment. The employee was not warned of the financial detriment that would result in his accepting to terminate the employment in advance of the contractual Notice period. He was given no advice in this regard and was somehow led to believe that a perfectly standard and innocuous signing off document amounted to a waiver of all his rights. The Complainant’s contract states clearly that there is four week Notice period. He was willing to work this period – as acknowledged by the JH – and when he was invited to leave the workplace two weeks early he should have been advised that this was intended to be a waiver of his entitlement to be remunerated for the Notice period.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I therefore find that the complaint of a contravention of Section 5 Payment of Wages Act 1991 is deemed to be well founded and based on the Complainant’s earnings as disclosed I direct that the Complainant be paid the sum of €2,200.00
|
Dated: 7th June 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: