Act

Complaint Reference No.

Date of Receipt

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

CA-00019001-001

07/05/2018

The Complainant commenced her employment with the Respondent on 9th November 2016. She was paid €10 per hour gross and worked 45 hours a week. The Complainant claims that she did not receive the appropriate payment in lieu of notice of termination of her employment. The Respondent rejects the claim.

The Complainant submits that she began working for the Respondent on 9th November 2016. She began working in an Over the Counter (OTC) role, and by Christmas 2016 she had moved into the dispensary where she was working as a dispensing assistant in addition to her OTC role. She was working 45 hours a week spread over Monday to Friday, with the occasional Saturday. In May 2017 she took over the role of a full-time technician.

The Complainant submits that during the summer 2017, she asked about the possibility of enrolling in the Irish Pharmaceutical Union (IPU) Technician course. She was told that this would be no problem, but as another member of staff had also asked to do the course before she did, she would have to pay for the course herself as the IPU only gives one grant to cover the fees per pharmacy. The Complainant submits that she started the course in September 2017.

The Complainant submits that on 25th March 2018, she sent a letter of resignation to the Operations Manager, Ms L, and to Mr J of HR. In it the Complainant wrote that it should serve as her one month’s notice, meaning that her final day of work would be 25th April 2018. The Complainant claims that on 28th March 2018 she received an email confirming receipt of her email from Mr J. On 3rd April she received an email accepting her resignation from Ms L, in which Ms L stated that the Complainant’s final day would be 10th April 2018, two weeks earlier than her one month’s notice period ended. The Complainant claims that she rang Citizen Information and the WRC as her understanding was that an employer has to pay an employee the entire notice period, whether or not they want the employee to work it. She claims that both organisations confirmed same. The Complainant submits that on 17th April 2018 she sent an email to Ms L detailing, amongst others, the final total hours worked. She claims that it was standard practice that around the 18th -20th of each month the employees would email Ms L their hours of work for that month. The Complainant submits that in this email she calculated the hours she had worked up to and including 10th April, the holiday pay she was owed (using 8% of total hours worked method), and the number of hours she would have worked for the remainder of her notice period. The Complainant contends that on 24th April 2018 she was cc-ed an email sent by Mr J, which incorrectly stated that through her personal circumstances she had agreed to leave on 10th April. The Complainant argues that she did not request an earlier end date. Her understanding was that the Respondent wanted her to leave before her months’ notice ended, and that the Respondent was aware of regulations which mandated payment for the entire notice period. The Complainant submits that while she started her new job on 23rd April, she was able to set her own start date, and would have been able to start the following week-after the end of her one month’s notice period. The Complainant contends that on 26th April 2018 she received her final pay from the Respondent, which included the hours she had worked up to and including 10th April, and her holiday pay. The remaining 11 days she would have worked before the end of her notice period were not paid.

At the adjudication hearing the Complainant stated that she did not plan to leave earlier and does not remember asking about changing the roster to allow for the reduction of her notice period. The Complainant stated that she assumed that the Respondent would pay her until the 25th April 2018.

The Respondent submits that the Complainant gave notice on Sunday 25th March 2018 by email to the Operations Manager, Ms L, that she was leaving the Respondent. A day of leaving was set out in the email to be 25th April 2018 (the Complainant’s contract requires two months’ notice). At the time Ms L was on holidays and unable to respond to the email until she met the Complainant on 3rd April 2018. The Respondent submits that at this meeting the Complainant was asked whether she would like to relocate to another store, change the hours or if she had any other proposals which would make her stay with the Respondent. There were some discussions about the technician course which both Ms L and the Complainant were completing together. The Complainant advised that she had been in contact with the Irish Pharmaceutical Union and had postponed the course for the foreseeable future. The Respondent submits that the Complainant did not want to stay on with the Respondent and on this basis the Respondent was agreeable to her notice being reduced to one month. The Respondent contends that the Complainant advised Ms L that her grandmother was unwell and that her father and uncle were not doing a good job looking after her and that her desire was to take some time off to look after her. Ms L told the Complainant that she understood as she also had to take care of an elderly relative. The Respondent submits that the Complainant said that she would be grateful if she did not have to finish out her notice period given the need to take care of her grandmother. This was agreed a number of days later after Ms L moved around the rosters in order to release the Complainant early and advised her that if she wished to return when her grandmother was better, the Respondent would be happy to have her back. There was no further discussion about the matter. This was reflected in an email to the Complainant reflecting the Respondent’s understanding of how difficult it was to have to work out the Complainant’s notice, the fact that the rotas had been moved to enable the Complainant to finish on 10th April. The Complainant responded expressing her appreciation for the reorganisation of the rotas.

The Respondent submits that on 17th April 2018 the Complainant sent out an email outlining her hours worked, and for the first time raising the payment for the period from 12th to 25th April seeking payment for hours not worked during what she is now claiming was her full notice period (which she was now claiming was not worked at Ms L’s direction. The Complainant has been paid to the last day she worked including holiday money owed).

The Respondent submits that in her submission the Complainant outlines that the Respondent reserves the right at all time to pay salary in lieu of any period of notice, the Respondent did not agree to this in respect of the Complainant. Mr J’s email to Ms L of 24th April 2018 reflects the Respondent’s confusion with the claim. The Complainant was expected to give notice and the change in her finish date was agreed with her. The Respondent argues that the Complainant is now claiming that her finish date was not agreed with her, which is not consistent with her appreciation for the earlier finish expressed in her earlier email.

In summary, the Respondent contends that the Complainant resigned giving one months’ notice. She subsequently sought for this to be reduced so that she could take care of her grandmother. After a number of days this was agreed and the roster could be changed to facilitate this. The Complainant expressed her appreciation for this. Had the Respondent known that she expected to be paid for her notice, she would have had to work her full notice. The Respondent submits that the Complainant subsequently began working with a competitor of the Respondent.

Evidence of Ms L, Operations Manager

Ms L stated that the Complainant told her about her grandmother’s care needs and said that she would appreciate if she could leave earlier. Ms L noted that she understood the Complainant’s difficulties as she too cared for an elderly relative. She pointed out that the change of the rosters and the early release of the Complainant caused both an inconvenience and financial cost to the Respondent.

The Complainant asserts that there was a deduction from her wages contrary to section 5 of the Payment of Wages Act, 1991. She claims that she was not paid in lieu of notice. The definition of wages in Section 1 (b) of the 1991 Act includes

“any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee appropriate prior notice of the termination, being a sum paid in lieu of the giving of notice”

There was no dispute that the decision to terminate the employment was the Complainant’s not the Respondent’s. The Complainant informed the Respondent on 25th March 2018 that she wishes to terminate her employment on 25th April. I note that her contract stipulates as follows: “you are required to give two month’s notice of termination of Employment to the company.” I note that the Respondent agreed to shorten the notice period to one month. There was conflicting evidence as to whether or not the Complainant requested her notice to be shortened further due to her intention to look after her elderly relative. The Complainant stated at the hearing that she doesn’t remember requesting same. The Respondent, on the other hand was clear that the Complainant was released earlier on her own request. I have reviewed the correspondence between the Parties and I note that in her email of 3rd April 2018 Ms L states: “…We understand how difficult it is to have to work out notice and with that in mind we have moved around rotas to enable you to finish with the company on 10th April.” The Complainant replied later that day by email stating: “Thanks for getting back to me on this. Appreciate the rota organising.” Having reviewed the submissions of the Parties and all of the evidence made available to me I find that the Complainant requested to be released earlier from her employment without working out the remainder of the notice. I find the Respondent’s assertion that had it known that the Complainant expected to be paid for her notice, she would have had to work her full notice to be more compelling and plausible.

I declare that the complaint made pursuant to the Payment of Wages Act, 1991 is not well-founded.

Payment in lieu of notice- shortened notice