ADJUDICATION OFFICERS CORRECTION ORDER
This Correction Order is made pursuant to powers under section 39(2) of the Organisation of Working Act 1997 and/or section 41(16) of the Workplace Relations Act 2015. It should be read in conjunction with the Decision which issued to the parties on 12 September 2018
Adjudication Reference: ADJ-00012777
Parties:
| Complainant | Respondent |
Anonymised Parties | An IT administrator | An IT security company |
Representatives | Peadar Nolan, SIPTU |
|
Complaints:
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-00016913-001 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016913-002 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016913-003 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016913-004 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016913-005 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016913-006 | 18/01/2018 |
Date of Adjudication Hearing: 05/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. On September 5th 2018, I conducted a hearing and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant was represented by Mr Peadar Nolan of SIPTU. The respondent did not attend. Although the complainant indicated that the company may be closed, details on the website of the Companies Registration Office indicate that it is not closed, insolvent or struck off. The registered address is the address to which correspondence was sent to the complainant’s manager by the WRC. Notification of the hearing was sent on August 13th 2018, but was returned. The company has no other known address.
Background:
The complainant is an IT administrator and the company he worked for is involved in IT security. He started work on June 1st 2017 on €9.25 per hour. He said that on October 11th 2017, his line manager told him and five other employees that they were being let go. The reason given was that the directors wanted to close the company. The complainant’s manager was one of the two directors and a 50% shareholder in the business, with the other director holding the remaining 50% of shares. His complaint is that, when his employment was terminated, he did not receive his statutory entitlements to pay, including wages, notice and holiday pay. He also complains that he did not receive a written statement of his terms and conditions of employment. |
Summary of Complainant’s Case:
CA-00016913-001 Complaint under section 6 of the Payment of Wages Act 1991 The complainant’s last day at work was October 11th 2017. At the hearing, he produced evidence in the form of a bank statement which showed that, on September 27th 2017, he was paid €1,478.69 in respect of wages for the month of September. His bank statements up to the end of December show that there were no further payments from the company. He complains that he was not paid for the days he worked from Monday, October 2nd until October 11th. Shortly after the termination of his employment, the complainant contacted SIPTU for assistance. Evidence was presented of correspondence between an industrial organiser in the union and the complainant’s former line manager. The industrial organiser wrote to the manager on November 13th 2017, requesting a P45 and payment for the days worked in October, pay in lieu of notice and holiday pay. By e mail on the same day, the manager responded saying: “1 (Name of complainant) had no formal employment contract with (name of respondent) 2 I am happy to pay any statutory entitlements (once issues are resolved) 3 I am happy to issue the P45 (once issues are resolved). “I have been tried (sic) to contact (name of complainant) on multiple occasions to close out his exit package but (name of complainant) had not returned my (Txts, Emails, Whatsapps). There are two items outstanding and they are to do with company property which he has not returned. A Company laptop B Company FOB “When these items are returned, I am more than happy to be able to close out his exit, as I have explained to him both verbally and in writing I cannot calculate what his exit number is without this company property returned. “I would also like to bring to your attention that (name of complainant) is a young man I suspect he is being manipulated. (Name of company) is currently in dispute with a shareholder. This shareholder is not part of the management team of (name of company) and therefore should not be interfering in the running of the business.” At the hearing, the complainant said that on October 18th or 19th, he returned the laptop to the shareholder referred to in this letter, who, as far as he was concerned, was a manager in the company. On November 30th, he sent a letter by e mail to his former manager asking him to send his P45 to him at his home address. He got no response and sent a follow-up e mail the next day, December 1st, saying, “please send the P45 to the following address….” In response, his former manager wrote: “There is a cost associated with that, the P45 is available to collected. Please specify a time you wish to drop in to collect it.” The complainant replied that he would collect the P45 from his former workplace on December 8th at 1.00pm. On that day, he was presented with a letter from his former manager who stated as follows: “Your exit package has been calculated taking into account the 11 days of work owed and 0 days holiday entitlement left you had (sic). The current amount owed to you is 0 euro. “The reason for this is your failure to return your company laptop or to provide a valid reason for its non-return. The company laptop has a value in excess of what you were owed. The custody slip you signed upon receiving the laptop clearly stated the laptop must be returned to your line manager which was me and it has not been returned.” A page appended to this letter is signed by the manager and states: “The below is to confirm that I received the following from (name of company) on my exit from the company: 1 P45 2 0 Euro enumeration (sic) in lieu of laptop” While there is a space on the page for the complainant to sign, he did not sign his agreement to this statement, because he said that did not hold on to the laptop, but returned it to a manager in the company. CA-00016913-002 Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973 This is a complaint about the fact that on October 11th 2017, the complainant’s employment was terminated with immediate effect and without notice. CA-00016913-003 Complaint under section 6 of the Payment of Wages Act 1991 This is a complaint about the fact that, as the complainant was not permitted to work out his notice, he was not paid in lieu of notice. CA-00016913-004 Complaint under section 27 of the Organisation of Working Time Act 1997 At the hearing, the complainant said that from the day he commenced working with the company on June 1st 2017, until his employment was terminated on October 11th, he did not take any holidays. At the termination of his employment, he was not paid for the holidays he was entitled to but which he did not take. CA-00016913-005 Complaint under section 27 of the Organisation of Working Time Act 1997 This complaint is the same as that set out under the previous complaint, CA-00016913-004 above. CA-00016913-006 Complaint under section 27 of the Organisation of Working Time Act 1997 The complainant said that he did not receive a statement setting out the terms and conditions of his employment. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The complainant’s employment was terminated by his former employer on October 11th 2017. His former line manager, who is a director and shareholder of the company, agrees that he was not paid for 11 days that he worked in October 2017. From the correspondence presented at the hearing, it appears that there is a dispute between the two shareholders in the company and the complainant is a victim of this. He said that he returned the laptop to a manager, not his line manager, as he was required to do. Regardless of this, he returned the laptop to the company. Even if he had not returned the laptop, he is entitled to be paid his wages for the days he worked. As he was not given notice of the termination of his employment, the complainant is entitled to one week’s pay in lieu of notice. Regarding the complaint about the non-payment of holiday pay, it is evident that the complainant was not paid for the holidays to which he was entitled at the time his employment was terminated. Based on his service of 19 weeks and the minimum statutory entitlement to four weeks’ holidays, I calculate this to be equivalent to seven days’ pay. Finally, the complainant said that he did not receive a statement of the terms and conditions of his employment. His former manager conceded to the veracity of this when, in his e mail to SIPTU on November 13th 2017, he stated: “(Name of complainant) had no formal employment contract with (name of company).” Section 3 of the Terms of Employment (Information) Act 1994 provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment. As the complainant worked for more than two months for the respondent, he had a statutory entitlement to receive a written statement of his terms and conditions. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00016913-001 Complaint under section 6 of the Payment of Wages Act Based on his hourly rate at the time of €9.25, I have decided that the respondent is to pay the complainant €936. This is an estimate of his pay for 11 days’ work carried out between October 2nd and 11th 2017, plus his entitlement to a premium for working on Sundays. CA-00016913-002 Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973 Redress in respect of this complaint is given under the heading of the next complaint, CA-00016913-003. CA-00016913-003 Complaint under section 6 of the Payment of Wages Act I have decided that the respondent is to pay the complainant €400, an estimate of one week’s pay based on the complainant’s hourly rate at the time of €9.25. CA-00016913-004 Complaint under section 27 of the Organisation of Working Time Act 1997 I have decided that the respondent is to pay the complainant €550, an estimate of the value of seven days’ pay in lieu of holidays not taken during his employment with the respondent from June 1st until October 11th 2017. CA-00016913-005 Complaint under section 27 of the Organisation of Working Time Act 1997 Redress in respect of this complaint is given under the heading of the previous complaint, CA-00016913-004. CA-00016913-006 Complaint under section 27 of the Organisation of Working Time Act 1997 As he did not receive a written statement of the terms and conditions of his employment, I have decided that the respondent is to pay the complainant compensation of €400, equivalent to the value of one week’s pay, based on the complainant’s hourly rate of €9.25. |
Summary of Awards:
For the avoidance of doubt, I have summarised below the awards made under each complaint heading.
CA-00016913-001: €936 Reason: Failure to pay wages due CA-00016913-003: €400 Reason: Failure to issue notice of to pay wages in lieu of notice CA-00016913-004: €550 Reason: Failure to pay for holidays not taken CA-00016913-006: €400 Reason: Failure to issue a statement of terms and conditions Total award: €2,286 |
Dated: 12th September 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Non-payment of wages |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012777
Complaints:
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-00016913-001 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016913-002 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016913-003 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016913-004 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016913-005 | 18/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016913-006 | 18/01/2018 |
Date of Adjudication Hearing: 05/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. On September 5th 2018, I conducted a hearing and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant was represented by Mr Peadar Nolan of SIPTU. The respondent did not attend. Although the complainant indicated that the company may be closed, details on the website of the Companies Registration Office indicate that it is not closed, insolvent or struck off. The registered address is the address to which correspondence was sent to the complainant’s manager by the WRC. Notification of the hearing was sent on August 13th 2018, but was returned. The company has no other known address.
Background:
The complainant is an IT administrator and the company he worked for is involved in IT security. He started work on June 1st 2017 on €9.25 per hour. He said that on October 11th 2017, his line manager told him and five other employees that they were being let go. The reason given was that the directors wanted to close the company. The complainant’s manager was one of the two directors and a 50% shareholder in the business, with the other director holding the remaining 50% of shares. His complaint is that, when his employment was terminated, he did not receive his statutory entitlements to pay, including wages, notice and holiday pay. He also complains that he did not receive a written statement of his terms and conditions of employment. |
Summary of Complainant’s Case:
CA-00016913-001 Complaint under section 6 of the Payment of Wages Act 1991 The complainant’s last day at work was October 11th 2017. At the hearing, he produced evidence in the form of a bank statement which showed that, on September 27th 2017, he was paid €1,478.69 in respect of wages for the month of September. His bank statements up to the end of December show that there were no further payments from the company. He complains that he was not paid for the days he worked from Monday, October 2nd until October 11th. Shortly after the termination of his employment, the complainant contacted SIPTU for assistance. Evidence was presented of correspondence between an industrial organiser in the union and the complainant’s former line manager. The industrial organiser wrote to the manager on November 13th 2017, requesting a P45 and payment for the days worked in October, pay in lieu of notice and holiday pay. By e mail on the same day, the manager responded saying: “1 (Name of complainant) had no formal employment contract with (name of respondent) 2 I am happy to pay any statutory entitlements (once issues are resolved) 3 I am happy to issue the P45 (once issues are resolved). “I have been tried (sic) to contact (name of complainant) on multiple occasions to close out his exit package but (name of complainant) had not returned my (Txts, Emails, Whatsapps). There are two items outstanding and they are to do with company property which he has not returned. A Company laptop B Company FOB “When these items are returned, I am more than happy to be able to close out his exit, as I have explained to him both verbally and in writing I cannot calculate what his exit number is without this company property returned. “I would also like to bring to your attention that (name of complainant) is a young man I suspect he is being manipulated. (Name of company) is currently in dispute with a shareholder. This shareholder is not part of the management team of (name of company) and therefore should not be interfering in the running of the business.” At the hearing, the complainant said that on October 18th or 19th, he returned the laptop to the shareholder referred to in this letter, who, as far as he was concerned, was a manager in the company. On November 30th, he sent a letter by e mail to his former manager asking him to send his P45 to him at his home address. He got no response and sent a follow-up e mail the next day, December 1st, saying, “please send the P45 to the following address….” In response, his former manager wrote: “There is a cost associated with that, the P45 is available to collected. Please specify a time you wish to drop in to collect it.” The complainant replied that he would collect the P45 from his former workplace on December 8th at 1.00pm. On that day, he was presented with a letter from his former manager who stated as follows: “Your exit package has been calculated taking into account the 11 days of work owed and 0 days holiday entitlement left you had (sic). The current amount owed to you is 0 euro. “The reason for this is your failure to return your company laptop or to provide a valid reason for its non-return. The company laptop has a value in excess of what you were owed. The custody slip you signed upon receiving the laptop clearly stated the laptop must be returned to your line manager which was me and it has not been returned.” A page appended to this letter is signed by the manager and states: “The below is to confirm that I received the following from (name of company) on my exit from the company: 1 P45 2 0 Euro enumeration (sic) in lieu of laptop” While there is a space on the page for the complainant to sign, he did not sign his agreement to this statement, because he said that did not hold on to the laptop, but returned it to a manager in the company. CA-00016913-002 Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973 This is a complaint about the fact that on October 11th 2017, the complainant’s employment was terminated with immediate effect and without notice. CA-00016913-003 Complaint under section 6 of the Payment of Wages Act 1991 This is a complaint about the fact that, as the complainant was not permitted to work out his notice, he was not paid in lieu of notice. CA-00016913-004 Complaint under section 27 of the Organisation of Working Time Act 1997 At the hearing, the complainant said that from the day he commenced working with the company on June 1st 2017, until his employment was terminated on October 11th, he did not take any holidays. At the termination of his employment, he was not paid for the holidays he was entitled to but which he did not take. CA-00016913-005 Complaint under section 27 of the Organisation of Working Time Act 1997 This complaint is the same as that set out under the previous complaint, CA-00016913-004 above. CA-00016913-006 Complaint under section 27 of the Organisation of Working Time Act 1997 The complainant said that he did not receive a statement setting out the terms and conditions of his employment. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The complainant’s employment was terminated by his former employer on October 11th 2017. His former line manager, who is a director and shareholder of the company, agrees that he was not paid for 11 days that he worked in October 2017. From the correspondence presented at the hearing, it appears that there is a dispute between the two shareholders in the company and the complainant is a victim of this. He said that he returned the laptop to a manager, not his line manager, as he was required to do. Regardless of this, he returned the laptop to the company. Even if he had not returned the laptop, he is entitled to be paid his wages for the days he worked. As he was not given notice of the termination of his employment, the complainant is entitled to one week’s pay in lieu of notice. Regarding the complaint about the non-payment of holiday pay, it is evident that the complainant was not paid for the holidays to which he was entitled at the time his employment was terminated. Based on his service of 19 weeks and the minimum statutory entitlement to four weeks’ holidays, I calculate this to be equivalent to seven days’ pay. Finally, the complainant said that he did not receive a statement of the terms and conditions of his employment. His former manager conceded to the veracity of this when, in his e mail to SIPTU on November 13th 2017, he stated: “(Name of complainant) had no formal employment contract with (name of company).” Section 3 of the Terms of Employment (Information) Act 1994 provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment. As the complainant worked for more than two months for the respondent, he had a statutory entitlement to receive a written statement of his terms and conditions. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00016913-001 Complaint under section 6 of the Payment of Wages Act I have decided that the respondent is to pay the complainant 11 days’ pay for work carried out between October 2nd and 11th 2017, plus his entitlement to a premium for working on Sundays. CA-00016913-002 Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973 Redress in respect of this complaint is given under the heading of the next complaint, CA-00016913-003. CA-00016913-003 Complaint under section 6 of the Payment of Wages Act I have decided that the respondent is to pay the complainant one week’s pay in lieu of notice, to be not less than five days’ pay, but to be calculated as the average of his weekly pay earned during the last 13 weeks of his employment with the respondent. CA-00016913-004 Complaint under section 27 of the Organisation of Working Time Act 1997 I have decided that the respondent is to pay the complainant seven days’ pay in lieu of holidays not taken during his employment with the respondent from June 1st until October 11th 2017. CA-00016913-005 Complaint under section 27 of the Organisation of Working Time Act 1997 Redress in respect of this complaint is given under the heading of the previous complaint, CA-00016913-004. CA-00016913-006 Complaint under section 27 of the Organisation of Working Time Act 1997 As he did not receive a written statement of the terms and conditions of his employment, I have decided that the respondent is to pay the complainant one week’s pay, to be not less than five days’ pay, but to be calculated as the average of his weekly pay earned during the last 13 weeks of his employment with the respondent. |
Dated: 12/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Non-payment of wages |