Complainant

Respondent

Anonymised Parties

An Auctioneer & Estate Agent

An Estate Agency

Representatives

Coghlan Kelly Solicitors

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028328-001

10/05/2019

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

CA-00028328-002

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028328-003

10/05/2019

The following is a summary of the Complainant’s case.

The Complainant claims that on 2 January 2019, he presented his employer with written notice of termination of employment, giving it one month’s notice from that date. The Complainant said that he fully intended to work out his notice period with a view to taking up a new role as a self-employed Auctioneer thereafter.

He said that on 3 January 2019 he returned to work out his notice and work on his tasks as normal. He said that at the request of his employer, Mr. A, he was told to leave the office and his employment as of 3 January 2019. He was told to return his work phone, keys and other items.

The Complainant said that Mr. A did not want him to work out his notice because he was concerned about the Complainant’s intention to enter into work in a self-employed capacity, in the same industry in the same locality.

The Complainant said that he did not in any way waive his right to notice. He said that there was no termination of contract by mutual consent. No such agreement was in place.

The Complainant said that his pay/salary included a commission on all completed sales. This commission formed part of his salary. The Complainant claims that his employer said that he is not entitled to claim commission that became payable after he left his employment.

He claims that it is a stated condition that commissions would form part of his salary. The Complainant's basic pay per month was €1,833.00; so, 6 weeks equates to €2,538.00 plus the commission list of sales negotiated by him before leaving his employment.

The Complainant claims that the commission rate of 15% of fee which would normally be 1.25% plus VAT to 1.5% plus vat average and min fee of €1,500 on smaller sales. At 1.5% amount due would be approximately €3,154.50. The Complainant provided a list of the properties he claims were closed and where he is entitled to a commission accordingly.

The Complainant said that as an alternative an average of payment equalling 6 weeks based on the previous 12 months equals €5,933.

The following is a summary of the Respondent’s case.

The Respondent claims that the Complainant was employed as an estate agent and auctioneer by the Respondent, an estate agency, from 11 May 2005 until 3 January 2019. The Respondent denies the claims brought pursuant to the 1973 Act and the 1991 Act. The Respondent declines to participate in the investigation pursuant to the 1969 Act. The Respondent said that on 2 January 2019 the Complainant resigned his employment in order to set up his own auctioneer practice in the same locality as the Respondent. On 3 January 2019 Mr A, owner of the Respondent, informed the Complainant that he would not be required to serve the remainder of his notice period. The Complainant’s last day of employment was 3 January 2019.

The Respondent said that Section 7(1) Minimum Notice and Terms of Employment Act 1973 states:

“nothing in the Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

The Respondent said Section 5(6) Payment of Wages Act 1991 states:

“Where-

(a) The total amount of any wages that are paid on any occasion by an employer to an employee is less that 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 the 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 Respondent said that the interrelationship between the 1973 Act and the 1991 Act was explored in Artisan Traditional Bakery Ltd. v. Avram PW/19/40. In that case the employer had waived part of

the notice period set out by the Claimant in her letter of resignation. The Claimant brought a claim pursuant to the Payment of Wages Act 1991 claiming an entitlement to be paid for that portion of the notice period during which the Claimant was available for work, but no work was offered.

The Respondent said that in the finding in that case the Respondent was entitled to waive the notice period of the Claimant, the Court held:

“For a breach of the Payment of Wages Act to occur the wages referenced in the claim must be properly payable. In this case the Respondent was in line with his entitlement under Section 7(1) of the Minimum Notice and Terms of Employment Act 1973 waived his right to notice. The Complaint was not required to work the notice period therefore, the issues of payment for that notice period did not arise. As there was no payment properly payable during the period claimed the appeal must fail.”

The Respondent said in the within case, it acted lawfully pursuant to Section 7(1) 1973 Act in waiving the right to notice. Similarly, the Respondent in the within case said it waived the right to notice and so there was no payment properly payable pursuant to Section 5(6) 1991 Act during the period claimed, namely the notice period waived by the Respondent.

The Respondent claims that the Complainant’s case should be dismissed as he resigned, and the Respondent’s lawful waiver of the Complainant’s notice period deprive the Complainant of any pay entitlements throughout the notice period pursuant to the Payment of Wages Act 1991 and/or the Minimum Notice and Terms of Employment Act 1973.

CA-00028328-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Law

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states;

Minimum period of notice

4.- (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

…

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

…

[…]

Right to waive notice.

7.— (1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.

Second Schedule

Rights of Employee During Period of Notice.

1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours

2. (a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

(ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

( b) In any case where an employee’s pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subparagraph ( a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

Employments for which there are no normal working hours

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

CA-00028328-002 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Section 1 of the Payment of Wages Act provides for the following definition of “wages”.

“Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including-

“(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise and

(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.”

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(2) of the Act provides: —

“(2)   An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.”

Conclusion

In essence the case before me is the payment of wages that the Complainant claims he is due for notice he was not allowed to work. I note the interrelationship between the two Acts - Minimum Notice & Terms of Employment Act and the Payment of Wages Act. I have carefully reviewed all the evidence presented from the parties. I find that on the balance of probabilities there was no waiving of the right of notice by the Complainant. He presented notice on 2 January 2019 and sought to work out that notice from 3 January 2019.

I note that on 3 January 2019 there was no non-payment of wages when the Complainant returned to work and was ready and willing to work out his notice. I am satisfied that the Respondent prevented him from working out his notice. Thus, the Respondent is required to pay the Complainant as per Section 4 of the Second Schedule of the Notice and Terms of Employment Act 1973. As noted above I am satisfied that the Complainant was asked to leave as of 3 January 2019 by the Respondent. Therefore, he is entitled to six weeks’ notice or payment in lieu for approx. 14 years worked as per Section 4(2)(d) of the Act.

Section 12 of the amended Minimum Notice and Terms of Employment Act provides that, where there is a contravention of the Act, redress may “include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” Therefore, where an employer delays in paying notice pay, this provision allows redress to be awarded to compensate for loss caused by such delay.

The usual measurement for the calculation of pay is set out in the Second Schedule of the Act. The Complainant has presented me with an average calculation of the 6 weeks’ pay based on the previous 12 months at €5,933. This figure is lower than the calculation of the 6-week basic salary plus the outstanding commission he claims is due as of 3 January 2019. However, I note some payments were already made to the Complainant by the Respondent for sales closed.

In line with Section 12 of the Minimum Notice and Terms of Employment Act, I deem that €5,933 is fair in the circumstances having considered the facts in this case.

CA-00028328-003 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I note that the dispute under the Section 13 of the Industrial Relations Act, 1969 relates to the poor treatment that the Complainant experienced at the end of his employment, having worked there 14 years and having to pursue what he claims he is entitlement to under the legislation.

I note the Respondent did not object for the case been investigated under the Industrial Relations Acts 1969 Act originally. However, prior to the hearing, via its submission, it declined to participate in the investigation of the dispute.

Accordingly, I make the following recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that the Respondent should pay €500 (five hundred euro) to the Complainant in respect of the matters raised under the Industrial Relations Acts, 1969.

CA-00028328-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

I find that the case is well founded, and the Respondent shall pay the Complainant €5,933 (five thousand nine hundred and thirty three euro).

CA-00028328-002 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complaint is not well founded.

CA-00028328-003 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I recommend that the Respondent should pay €500 (five hundred euro) to the Complainant in respect of the matters raised under the Industrial Relations Acts, 1969.

Minimum Notice & Terms of Employment - Payment of Wages Act - Industrial Relations Act – compensation