Complainant

Respondent

Anonymised Parties

A Bar Manager

A Public House

Representatives

Alastair Purdy & Co. Solicitors

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028152-001

02/05/2019

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

CA-00028152-002

02/05/2019

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

CA-00028152-003

02/05/2019

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

CA-00028152-004

02/05/2019

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

CA-00028152-005

02/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028152-006

02/05/2019

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

CA-00028152-007

02/05/2019

The complainant was employed by the respondent as a Manager from September 1991 until on or about 24th April 2019. These complaints were lodged to the Workplace Relations Commission (WRC) on 2nd May 2019 and relate to alleged unfair dismissal and alleged breaches of the Organisation of Working Time Act, 1997, the Terms of Employment Information Act, 1994 and the Payment of Wages Act, 1991. The complainant also lodged previous complaints on 6th April 2019 relating to alleged breaches of Organisation of Working Time Act, 1997, the Terms of Employment Information Act, 1994 and the Payment of Wages Act, 1991. (ADJ000-20903 refers).

The complainant outlined that the complaints were submitted to the WRC prior to the respondent entering into Liquidation. In those circumstances the complainant’s representative stated that the complainant is a secured creditor for the purposes of receiving outstanding entitlements from the Social Insurance Fund.

The complainant outlined that in submitting the complaint to the WRC, the respondent’s surname was inadvertently omitted from the complaint form. The complainant stated that it was done so in error. I note that there were a number of complaints submitted by different individuals against the respondent and the complainant in this case also submitted separate complaints and named the correct entity (ADJ000-20903 refers).

The respondent was aware of all of the issues raised in the complaints and did not raise any issues in relation to the error. In my view the respondent was not prejudiced as a result of the complainant’s inadvertence. Accordingly, I have amended the respondent’s name in this decision to reflect the correct name of the respondent as outlined by the Labour Court in the case of Auto Depot Limited v Vasile Mateiu, Labour Court Determination No: UDD 1954.

The complainant outlined that he was summarily dismissed by the respondent on or about 24th April 2019. The circumstances leading the complainant’s dismissal concern the introduction of a new payroll system following the appointment of new Accountants in February 2019. The complainant stated that he was paid €618 gross per week and worked five days per week. The complainant stated that he himself in his role as Bar Manager deducted tax of approximately €318 from his gross pay each week and was left with a net payment of €300 thereafter.

The complainant stated that from the first week in March 2019 the net payment of €300 became a gross figure and the figure was taxed again and resulted in a reduction in net pay of €140.37 per week. The complainant stated that, as a result of the established level of take-home pay, he did not accept this reduction in earnings and that this issue as well as other business difficulties being experienced by the respondent ultimately led to his summary dismissal by email dated 24th April 2019.

The complaint’s representative contends that the respondent did not act reasonably or adhere to the principles of fair procedures or natural justice in its summary dismissal of the complainant. The complainant’s representatives cited the cases of Hennessy v Read and Write Shop Ltd (UD192/1978) and British Leyland UK Ltd v Swift (1981), Glover v BLN Ltd [1973] IR 388 and Khan v HSE [2009] ELR 178 in support of its position in that regard.

The respondent did not attend the adjudication hearing and was not represented.

The respondent’s non-attendance at adjudication

The complaint was submitted to the WRC on 2nd May 2019. There was no attendance by or on behalf of the respondent at the adjudication hearing. I note that a Liquidator was appointed to the respondent with effect from 29th July 2019.

The Applicable Law

Sections 6(1) and Section 6(4) of the Unfair Dismissals Act, 1977 state as follows:

6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Sections 6(7) of the Unfair Dismissals Act, 1977 states as follows:

6(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Based on the submissions and evidence of the complainant, I am satisfied that the respondent did not act reasonably, and that the complainant was dismissed unfairly without having the principles of fair procedures or natural justice applied to him.

While I find the complaint is well founded, the complainant was unable to provide any evidence that he had attempted to mitigate his losses by seeking alternative employment elsewhere. In circumstances where the complainant has failed to mitigate his loss, the maximum compensation payable to the complainant is four weeks gross pay.

The complaint of Unfair Dismissal is well founded. The respondent is directed to pay the complainant €2,472 in compensation.

CA-00028152-002 – Public Holiday entitlements

The complainant stated that he did not receive Public Holiday entitlements for the entirety of his employment with the respondent. The complainant is seeking compensation in relation to his complaint.

CA-00028152-003 – Sunday premium

The complainant stated that he worked every Sunday for the cognisable period of the complaint yet received only a flat hourly rate of pay.

CA-00028152-004 – Unlawful Deduction

This complaint concerns alleged unlawful deductions from the complainant’s salary from 8th March 2019 until his dismissal on 24th April 2019. The complainant stated that he was paid a gross weekly wage of €618 which resulted in a net payment to him of €300 per week. The complainant outlined that from March 2019 onwards the respondent introduced a new payroll system and the net payment of €300 which had already been subject to income tax from a gross figure of €618 became a gross figure and was taxed again. The complainant outlined that this resulted in a further weekly deduction from his salary of €140.37 which he did not accept and as a result of this unlawful deduction he did not accept the remainder of his weekly salary of €159.63 for the period in question. In total, the complainant contends he is owed €2100 in respect of unpaid salary from 8th March 2019 until 24th April 2019.

CA-00028152-005 – Public Holiday entitlements

The complainant stated that he never received Public Holiday entitlements while in the employment of the respondent and is seeking compensation in that regard.

CA-00028152-006 – Notification of Changes

The complainant stated that he did not receive any written notification of the changes to his terms and conditions of employment in accordance with Section 5 of the Terms of Employment Act, 1994. This complaint relates to the changes to the payroll system which occurred in March 2019.

CA-00028152-007 – Notice entitlements

The complainant stated that he was summarily dismissed on 24th April 2019. The complainant stated that by virtue of his service with the respondent he should have received eight weeks’ pay in lieu of notice entitlements.

The respondent did not attend that adjudication hearing and was not represented.

Cognisable period of the complaint

The complaints were submitted to the Workplace Relations Commission (WRC) on 2nd May 2019. The cognisable period of the complaint is 3rd November 2018 – 2nd May 2019. Decisions on each complaint are made in accordance with the time limits prescribed under Section 41(6) of the Workplace Relations Act, 2015.

CA-00028152-002 – Public Holiday entitlements

There were five Public Holidays within the cognisable period of the complaint; 25th and 26th December 2018, 1st January 2019, 17th March 2019 and 22nd April 2019. The complainant confirmed in evidence that he worked all Public Holidays except for 25th December 2018. The complainant stated that he did not receive Public Holiday entitlements in line with the provisions of the legislation. Section 25 of the Organisation of Working Time Act, 1997 requires the employer to retain working time records. As the employer did not attend the adjudication hearing it was not possible to obtain the relevant information from the respondent. From considering the entirety of the complaints and the evidence of the complainant, I find, on balance that in relation to Public Holidays, the complainant did not receive the appropriate entitlements.

CA-00028152-003 – Sunday premium

The complainant confirmed that he worked 26 Sundays within the cognisable period of the complaint. The payslips submitted show a gross rate of pay of €20 per hour. As there was no attendance by or on behalf of the respondent at the adjudication hearing, it was impossible to clarify the position in relation to the complaint, however, the complainant’s evidence and the payslips provided show that only a flat rate of pay was paid to the complainant each week.

Having considered the matter, I conclude on balance that the complaint is well founded. I find it fair and reasonable that the complainant should have received a premium of time plus one third for working on Sundays. Based on an eight hour shift the daily Sunday premium would be €48. In total the complainant is due €1,248 in respect of outstanding Sunday premium payments.

CA-00028152-004 – Payment of Wages Act, 1991 Unlawful Deductions

The complainant’s net salary was reduced as a result of a new payroll system that was introduced by the respondent. The complainant stated that he had an established net salary payment of €300 per week. While the payslips submitted from March 2019 show only a gross payment of €300 for a 15-hour working week, the complainant confirmed that the €300 net figure had already been subject to taxation from gross figure of €618 and that he was in fact a full-time employee throughout his employment with the respondent. While the lack of participation from the respondent in the adjudication process has made it extremely difficult to establish the exact details of the working hours and hourly rate of pay etc, and while there is a lack of clarity on these issues, I am satisfied that the complainant and his representative gave an honest and credible account of the specifics of the complainant’s employment and the events that led to his termination. In relation to the weekly deduction of €140.37 from March 2019 onwards, I accept that this was an unlawful deduction in contravention of Section 5 of the Payment of Wages Act, 1991 for a period of almost seven weeks and totalled €982.59. However, I do not find that the remaining €159.63 per week for seven weeks which the complainant refused to accept was an unlawful deduction within the meaning of the legislation. Accordingly, I find that the complaint is well founded only in part.

CA-00028152-005 – Public Holiday entitlements

The complainant’s entitlement to Public Holidays for the cognisable period of the complaint has been addressed in complaint application CA-00028152-002 above. This complaint relates to Public Holiday entitlements that were “never” received and relate to periods of time outside of the six-month time period permitted by the legislation. Accordingly, I find that in line with Section 41 of the Workplace Relations Act, 2015, the complaint is out of time and is therefore statue barred.

CA-00028152-006 – Notification of changes

The subject matter of this complaint has been addressed in Adjudication reference ADJ 000-20903 (CA-00027563-007). Accordingly, this complaint is a duplicate and is not well founded.

CA-00028152-007 – Notice entitlements

On the basis of the complainant’s summary dismissal, I find that the complaint relating to Notice entitlements is well founded. In accordance with Section 4(2)(e) of the Minimum Notice and Terms of Employment Act, 1973 the complainant is entitled to eight weeks’ notice pay.

CA-00028152-002 – Public Holiday entitlements

The complaint is well founded. The complainant has an outstanding entitlement to four days pay in respect of Public Holidays. The WRC complaint form states that complainant’s gross pay was €618 per week. The respondent is directed to pay the complainant €494.40 in respect of Public Holiday entitlements plus an additional €500 in compensation in respect of the infringement of his employment rights.

CA-00028152-003 – Sunday Premium

The complaint is well founded. The respondent is directed to pay the complainant €1248 in respect of outstanding Sunday Premium payments.

CA-00028152-004 – Payment of Wages Act, 1991 Unlawful Deductions

The complaint is well founded in part. The respondent is directed to pay the €982.59 in relation to the breach of Section 5 of the legislation.

CA-00028152-005 – Public Holiday entitlements

This complaint is out of time and is therefore statute barred.

CA-00028152-006 – Notification of changes

This complaint is not well founded.

CA-00028152-007 – Notice entitlements

The complaint is well founded. The complainant, by virtue of his service with the respondent from 1991 until 2019 is entitled to €4,944 (eight weeks pay) in respect of notice entitlements.

Public Holiday entitlement, Sunday Premium payments, Unlawful Deductions, Notification of changes to written terms and conditions of employment, Notice entitlements.