ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021839
Parties:
| Complainant | Respondent |
Anonymised Parties | A Manager/Sandwich Maker | A Sandwich Store |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00028500-002 | ||
CA-00028500-004 | ||
CA-00028500-006 | ||
CA-00028500-007 | ||
CA-00028500-008 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant withdrew the complaints under the Redundancy Payments Act 1967 (Complaint Ref. No. CA-00028500-007) and the Minimum Notice and Terms of Employment Act 1973 (Complaint Ref. No. CA-00028500-008) at the hearing.
Background:
The Complainant was employed by the Respondent as a Manager/Sandwich Maker from 23 October, 2008 until 2 February, 2019 when her employment was terminated. The Complainant worked between 35 to 40 hours per week and was paid a gross weekly wage of €400.00. The Complainant claims that the Respondent failed to pay her statutory redundancy entitlements when her employment was terminated by reason of redundancy. The Complainant claims that the Respondent made unlawful deductions from her wages in relation to outstanding wages and payment in lieu of notice contrary to Section 5 of the Payment of Wages Act 1991 on the termination of her employment. The Respondent did not engage with the WRC in relation to these complaints. |
Summary of Complainant’s Case:
CA-00028500-002 – Complaint under the Payment of Wages Act 1991 The Complainant claims that the Respondent failed to pay her in respect of two week’s wages which she had accrued on the termination of her employment. The Complainant stated that she did not receive payment of wages in respect of work carried out during the weeks commencing 21 January, 2019 and 28 January, 2019. The Complainant claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Act. CA-00028500-004 – Complaint under the Payment of Wages Act 1991 The Complainant claims that she did not receive the appropriate payment in lieu of notice on the termination of her employment on 2 February, 2019. The Complainant stated that she received notice from the Respondent on 29 January, 2019 that her employment would be terminated on 2 February, 2019. The Complainant contends that she was entitled to a statutory period of six weeks’ notice on the termination of her employment. The Complainant claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act, 1991. CA-00028500-006 – Complaint under the Redundancy Payments Act 1967 The Complainant stated that she was informed by the Respondent on 29 January, 2019 that the business was closing with effect from 2 February, 2019. The Complainant stated that her employment was terminated on 2 February, 2019 by reason of redundancy as a result of the closure of the business on this date. The Complainant stated that she requested payment of her statutory redundancy entitlements from the Respondent following the termination of her employment (using the RP9 and RP77 Forms) but the Respondent has failed to discharge the payment of his entitlements. |
Summary of Respondent’s Case:
The Respondent did not engage with the Workplace Relations Commission in relation to this complaint. |
Findings and Conclusions:
CA-00028500-002 – Complaint under the Payment of Wages Act 1991 Section 5(1) of the Act provides: - “(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” Section 5(6) of the Act provides: — (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. The Complainant claims that the Respondent failed to pay her in respect of two week’s wages that she had accrued on the termination of her employment, namely for work carried out during the week’s commencing 21 January, 2019 and 28 January, 2019. Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive payment from the Respondent in respect of two week’s wages which she had accrued on the termination of her employment. CA-00028500-004 – Complaint under the Payment of Wages Act 1991 Section 1 of the Payment of Wages Act, 1991 defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including— (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”. The Complainant claims that she did not receive the appropriate payment in lieu of notice on the termination of his employment on 2 February, 2019. The Complainant stated that she received notice from the Respondent on 29 January, 2019 that her employment would terminate on 2 February, 2019. Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive the appropriate statutory notice from the Respondent prior to the termination of her employment nor did she receive payment in lieu of this entitlement from the Respondent. The Complainant was employed by the Respondent for approx. 10 years and three months and therefore was entitled to a statutory period of six weeks’ notice prior to the termination of her employment. I am satisfied that the Complainant only received 4 days’ notice prior to the termination of her employment and therefore was entitled to payment in lieu in respect of the outstanding period i.e. 5.2 weeks. Accordingly, I find the Complainant’s claim under the Payment of Wages Act 1991 is well founded and that the Respondent’s failure to pay her in lieu of her outstanding statutory notice entitlement upon the termination of her employment constitutes an unlawful deduction from her wages within the meaning of Section 5 of the Act. CA-00028500-006 – Complaint under the Redundancy Payments Act 1967 The Complainant adduced evidence that her employment with the Respondent was terminated on 2 February, 2019 by reason of redundancy. Based on the uncontested evidence of the Complainant, I find that the Complainant was employed on a continuous basis with the Respondent from 23 October, 2008 until 2 February, 2019 when her employment was terminated by reason of redundancy following the closure of the Respondent’s business. |
Decision:
CA-00028500-002 – Complaint under the Payment of Wages Act 1991 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. I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to her statutory notice entitlements, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €2,080.00 being the amount of the unlawful deduction. This amount has been calculated based on the Complainant’s gross weekly and is subject to any lawful deductions. CA-00028500-004 – Complaint under the Payment of Wages Act 1991 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. I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid wages, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €800.00 being the net amount of the unlawful deduction. This amount has been calculated based on the Complainant’s gross weekly and is subject to any lawful deductions. CA-00028500-006 – Complaint under the Redundancy Payments Act 1967 Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I find that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: - Date of commencement: 23 October, 2008 - Date of termination: 2 February, 2019 - Gross weekly wage: €400.00 This award is made subject to the complainant fulfilling current social welfare requirements in relation to PRSI contributions. |
Dated: December 17th 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Redundancy Payments Act, 1967 to 2012 – Failure to pay statutory redundancy entitlement – Payment of Wages Act, 1991 – Section 5 – Unlawful Deductions – Payment in lieu of notice – Unpaid wages – Complaint well founded |