ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00019575

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/04/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a relief Social Care Worker at the Respondent’s therapeutic residence services for children, adolescents and vulnerable adults. On 3rd February 2019 the Complainant submitted a complaint to the WRC that she was not paid in lieu of notice of termination of her employment contrary to the Payment of Wages Act 1991. The Respondent refuted the complaint and maintained the Complainant had been properly paid.

Summary of Complainant’s Case:

The Complainant started employment as a relief Social Care Worker on 20th June 2017. On 28th July 2018 she submitted a letter of resignation to the Respondent stating her last day of work was 31st August 2018 as she was taking up employment elsewhere. In her letter of resignation, the Complainant indicated that she may be available to work for a number of weeks after her resignation date depending on her start date with the new employer, and that she would notify the Respondent of her start date.

The Complainant did not notify the Respondent of a change to her start date.   However, the Complainant submitted that in early August 2018 she was asked by management if she would work for two weeks in September 2018 and she confirmed she would. The Complainant submitted that she changed her start date with her new employer to facilitate this request, and she was placed on the roster. However, on 31st August 2018 she was informed by the Respondent that she was not needed, and her job was terminated.

The Complainant was seeking payment for the two weeks she had been rostered for work in September 2018, but which was cancelled. The Complainant submitted an unsigned letter from her new employer that she maintained indicated she had sought a change of her start date to facilitate the Respondent for two weeks in September. The Complainant was seeking compensation for the loss of two weeks pay as she had changed her departure date.

Summary of Respondent’s Case:

The Respondent confirmed that the Complainant was employed as a relief Social Care Worker. The Respondent advised in accordance with the Complainant’s contract the Complainant was rostered for work on a monthly basis to meet the Respondent’s relief needs. Her contract of employment states “the continuation of relief work is dependent on the requirement for relief team members within our services, and this demand may fluctuate”.

During 2018 the Respondent offered the Complainant a permanent part time role, but the Complainant turned this down and remained as a relief worker.

The Respondent submitted that the Complainant handed in a letter of resignation on 28th July 2018 with a termination date of 31st August 2018 as she had found employment elsewhere. The respondent acknowledged that the Complainant was approached in early August 2018 by local management to see if she was available to be rostered in September 2018, and where a draft roster was produced in early August 2018. However, as a new staff member was starting, and capacity became available from another house that was closing, the Respondent did not require the Complainant to work in September 2018. The Respondent further maintained that it never received notification from the Complainant that her start date with her new employer had changed, and therefore it took her termination date as the date provided on her letter of resignation, which was 31st August 2018.

The Respondent acknowledged that the Complainant was not rostered for work in September 2018 and it was not aware there was change in the Complainant’s start date with her new employer. The Respondent maintained that the Complainant handed in her notice, served her notice period, was paid for her work over this notice period. Her job was terminated on 31st August 2018 as per the letter of resignation. No confirmation was made with the Complainant that her contract was to be extended, nor did the Complainant notify the Respondent that she wished to change her termination date. The Respondent disputed the validity of an unsigned letter from the Complainant’s new employer which stated the Complainant had notified her new employer that she was delaying her start date as she was still working with the Respondent for two weeks in September.

The Respondent argued that the Complainant worked for the month of August 2018, was paid for the hours she worked in August 2018 (which was higher than her average monthly hours), and was paid for any of her entitlements due to the cessation of employment. The Respondent maintained as the Complainant’s employment was terminated on 31st August 2018, she was not rostered for work in September 2018 and therefore she was not entitled to be paid for work she did not complete.

Findings and Conclusions:

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• 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

• in the case of a deduction, the employee has given his prior consent in writing to it.I find that the Complainant submitted her letter of resignation on 28th July 2018 and she served her notice period up to the 31st August 2018 and was paid for this work.A dispute exists regarding whether the Complainant extended her notice period for two weeks in September 2018 and as such whether she was entitled to be paid for these two weeks.Having reviewed the evidence presented I am satisfied that the Complainant did hand in her resignation in writing with a termination date of 31st August 2018 and at which time she indicated she may be available for a number of weeks after 28th August 2018. The Complainant indicated that she would get back to the Respondent about this. The evidence provided confirms the Complainant did not get back to the Respondent to advice she wanted to change her resignation date. The evidence also supports that in early August 2018 the Complainant was rostered on a draft roster for work in September, but as the Respondent’s needs change the Complainant was not subsequently rostered in the final roster that was issued. I therefore conclude that the Respondent terminated the Complainant’s employment in accordance with her letter of resignation.As the Complainant did not subsequently work during September I find that she is not entitled to any payment of wages for this period. I am further satisfied that she did receive all payments due to her at the time of her termination.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act.

I do not find the complaint is well-founded or that the Complainant was unlawfully deducted any payments.. I do not find the respondent was in breach of its obligations under the Payment of Wages Act.

Dated: 28th May 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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