Complainant

Respondent

Anonymised Parties

A Labourer

A Construction Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00023199-001

14/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023199-002

14/11/2018

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

CA-00023199-004

14/11/2018

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

CA-00023199-005

14/11/2018

The Complainant was employed by the Respondent as a Labourer from 11 April, 2016 until 29 June, 2018 when his employment was terminated. The Complainant worked 40 hours per week and was paid a gross weekly wage of €738.00.

The Complainant claims that the Respondent failed to pay his statutory redundancy entitlements when his employment was terminated by reason of redundancy.

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997.

The Complainant claims that the Respondent failed to pay his outstanding wages and make payment to him in lieu of notice on the termination of his employment. The Complainant contends that this constitutes unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Respondent did not engage with the WRC in relation to these complaints.

CA-00023199-001 – Complaint under the Redundancy Payments Acts

The Complainant was employed by the Respondent as a Labourer from 11 April, 2016 until 29 June, 2018 when his employment was terminated. The Complainant worked 40 hours per week and was paid a gross weekly wage of €738.00.

The Complainant submitted that he took annual leave on 27 and 28 June, 2018. He was due to return to work on 29 June, 2018 but received a telephone call from a work colleague informing him not to attend at work for a few days as there was a fire inspection scheduled on the site where he worked for the Respondent. The Complainant subsequently received a text message from the Respondent on 17 July, 2018 informing him that the work was closing down and advising him to sign on for Jobseekers Allowance.

The Complainant stated that he requested payment of his statutory redundancy entitlements from the Respondent following the termination of his employment (using the RP9 and RP77 Forms) but the Respondent has failed to discharge the payment of his entitlements.

CA-00023199-002 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant submitted that he had accrued an entitlement to 10 days annual leave for the period of time that he worked in 2018 but only received payment in respect of one day’s annual leave during this period. The Complainant claims that he had an outstanding entitlement to 9 days annual leave for 2018 on the termination of his employment.

CA-00023199-004 – Complaint under the Payment of Wages Act 1991

The Complainant claims that he did not receive the appropriate payment in lieu of notice on the termination of his employment on 29 June, 2018. The Complainant claims that this constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act, 1991.

CA-00023199-005 – Complaint under the Payment of Wages Act 1991

The Complainant claims that the Respondent failed to pay him in respect of a week’s wages on the termination of his employment. The Complainant claims that he worked a week in advance and that he did not receive payment of the wages accrued during his final week of employment. The Complainant claims that this constitutes an unlawful deduction from his wages contrary to Section 5 of the Act.

The Respondent did not engage with the Workplace Relations Commission in relation to this complaint. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing. In the circumstances, I find that the Respondent’s non-attendance without any acceptable explanation to be unreasonable in the circumstances.

CA-00023199-001 – Complaint under the Redundancy Payments Acts

The Complainant adduced evidence that his employment with the Respondent was terminated on 29 June, 2018 without any prior notification or warning.

Based on the uncontested evidence of the Complainant, I find that the Complainant was employed on a continuous basis with the Respondent from 11 April, 2016 until 29 June, 2018 when his employment was terminated by reason of redundancy following the closure of the Respondent’s business.

CA-00023199-002 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant submitted that he had accrued an entitlement to 10 days annual leave for the period of time that he worked in 2018 but only received payment in respect of one day’s annual leave during this period. The Complainant claims that he had an outstanding entitlement to 9 days annual leave on the termination of his employment.

The Complainant’s employment was terminated on 29 June, 2018 and he referred his complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 14 November, 2018. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 15 June, 2018 to 14 November, 2018.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(ii) of the Act, I am satisfied that any outstanding annual leave accrued during the annual leave year 2017/2018 (i.e. 1 April, 2017 to 31 March, 2018) and 2018/2019 (i.e. 1 April, 2018 to 31 March, 2019) is covered by this complaint.

In relation to the 2017/2018 leave year (i.e. from 1 January, 2018 to 31 March, 2018), I am satisfied that the Complainant had accrued an annual leave entitlement of 8% of 520 hours worked during this period = 41.6 hours x €18.45 per hour = €767.52.

In relation to the 2018/2019 leave year (i.e. from 1 April, 2018 to 29 June, 2018), I am satisfied that the Complainant had accrued an annual leave entitlement of 8% of 512 hours worked during this period = 40.96 hours x €18.45 per hour = €755.71. The Complainant adduced evidence that he was paid in respect of one day’s annual leave in June, 2018, and therefore, I find that his outstanding annual leave entitlement for 2018/2019 was €751.71 less €147.60 (being the equivalent of one day’s pay) = €604.11.

Based on the uncontested evidence of the Complainant, I find that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act.

CA-00023199-004 – Complaint under the Payment of Wages Act 1991

The Complainant claims that he did not receive the appropriate payment in lieu of notice on the termination of his employment on 29 June, 2018.

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”.

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive any notice from the Respondent prior to the termination of his employment nor did he receive payment in lieu of this entitlement from the Respondent.

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 him in lieu of his statutory notice entitlement upon the termination of his employment constitutes an unlawful deduction from his wages within the meaning of Section 5 of the Act.

CA-00023199-005 – 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— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(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 him in respect of a week’s wages that he had accrued on the termination of his employment. The Complainant claims that he worked a week in advance and that he did not receive payment of the wages accrued during his final week of employment.

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive payment from the Respondent in respect of his final week’s wages on the termination of his employment.

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 him in respect of his final week’s wages upon the termination of his employment constitutes an unlawful deduction from his wages within the meaning of Section 5 of the Act.

CA-00023199-001 – Complaint under the Redundancy Payments Acts

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: 11 April, 2016

-          Date of termination: 29 June, 2018

-          Gross weekly wage: €738.00

This award is made subject to the complainant fulfilling current social welfare requirements in relation to PRSI contributions.

CA-00023199-002 – Complaint under the Organisation of Working Time Act 1997

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.

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €767.52, subject to any lawful deductions, cesser pay in respect of annual leave accrued for the annual leave year 2017/2018, and

-          €604.11, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2018/19, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00023199-004 – 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 his statutory notice entitlements, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €1,320.00 being the net amount of the unlawful deduction.

CA-00023199-005 – 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 €660.00 being the net amount of the unlawful deduction.

Redundancy Payments Act, 1967 – Failure to pay statutory redundancy entitlement - Organisation of Working Time Act, 1997 – Section 23 – Annual Leave entitlements – Cesser Pay – Complaint well founded – Payment of Wages Act, 1991 – Section 5 – Unlawful Deductions – Payment in lieu of notice – Unpaid wages – Complaint well founded