Complainant

Respondent

Anonymised Parties

A Sales Representative

Insulation Company

Act

Complaint Reference No.

Date of Receipt

Complaints seeking adjudication by the Workplace Relations Commission.

CA-00032362-001

20/11/2019

The Complainant was employed as a Sales Representative with the Respondent insulation company. His gross pay was €468; net €440 per 39-hour week. He commenced employment on the 12th of March 2012 and was made redundant on 23rd of August 2019. His complaints are (1) that he was unlawfully deducted €3,919 in his wages, without his consent, in the nine weeks prior to his redundancy date, and (2) he did not receive minimum notice, nor payment in lieu of such notice, upon termination of his employment.

At the outset of the hearing the Complainant said that the wrong box was ticked in the Workplace Relations Commission (WRC) complaint form regarding the relevant legislation covering his complaints. He submits instead that his complaints were accurately encompassed in his description in the following terms: “Made Redundant in August 2019. Shortfall in wages payment for last 9 weeks totalling €3,919. Also no pay in lieu of notice paid.” In his inadvertence, the Complainant submits he had ticked adjudication under section 27 of the Organisation of Working Time Act, 1997 instead of adjudication under the Payment of Wages Act, 1991 and the Minimum Notice & Terms of employment Act 1973, respectively. The Complainant submits that the Adjudicator should hear the complaints under the foregoing Acts because his complaints are clearly stated on the WRC complaint form which would have been received by the Respondent.

The Complainant was employed as a Sales Representative with the Respondent insulation company. His gross pay was €468; net €440 per 39-hour week. He commenced employment on the 12th of March 2012 and was made redundant on the 23rd of August 2019. His submits that there was a significant shortfall in his pay in the final nine weeks of his employment, before the date of his redundancy. He submits documentary evidence where he shows he was deducted €3,919 in his wages, without his consent. The Respondent wrote to the Complainant to state that his employment would terminate with immediate effect. The Complainant exhibited this letter. 

The Complainant further submits that he is owed four weeks wages as notice pay. He submits he has not received any amount of the four weeks of notice pay due.

There was no appearance by or on behalf of the respondent, and nor did the respondent make submissions for the adjudication.

I will firstly deal with the Complainant’s application to have the complainants heard under the Payment of Wages Act, 1991 and The Minimum Notice & Terms of Employment Act, 1973., considering his stated inadvertence by choosing the Organisation of Working Time Act, 1997.

In Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210, Charleton J. held:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying the above approach to the instant case, I note that the elucidation by the Complainant of his complaints are written as follows on the complaint form: “Made Redundant in August 2019. Shortfall in wages payment for last 9 weeks totalling €3,919. Also no pay in lieu of notice paid.” These words show the Complainant was explicit in that he sought recovery of the shortfall in his wages as well as notice pay arising from a set of circumstances where he had been made redundant. I note that the WRC complaint form is a non-statutory form. I also note that this complaint was referred to me under section 41 of the Workplace Relations Act (along with other statutes), giving me legal jurisdiction to make an award pursuant to the Schedule 6 of the Act, including under the Payment of Wages Act, 1991 and the Minimum Notice and Terms of Employment Act, 1973 Moreover, I note that section 41(5) of the Workplace Relations Act imposes a duty on the adjudication officer to make a decision in relation to the claim or dispute in accordance with the relevant redress provision.

In considering this application, I deem that the written claim and oral assertion of the Complainant seeking a remedy are sufficient for the due administration of constitutional justice as provided for by the High Court in Galway-Mayo Institute of Technology above and I therefore find in favour of the Complainant on this point.

Complaint under the Payment of Wages Act, 1991:

Section 5 (6) of the Payment of Wage Act 1991 states;

·         “Where—

o    (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”.

Section 6 provides as follows:

Complaint to adjudication officer under section 41of Workplace Relations Act 2015

·         6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

·         (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

From the uncontestedevidence of the Complainant, I find that he has been unlawfully deducted the sum of €3,919.00 in wages properly payable to him and I find that his complaint is well founded and award him the sum of €3919.00 in compensation.

Complaint under the Minimum Notice & Terms of Employment Act, 1973.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period. The relevant sections are as follows:

(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—

… (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks…”

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

The Complainant was employed for more than 5 years but less than 10 years. I therefore conclude that section 4(c) applies and I therefore uphold that the Act was contravened and award the equivalent sum of four weeks wages which is €1872.00.

Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991:

I find that the complaint is well founded, and I award the Complainant the sum of €3919.00 in compensation.

Complaint seeking adjudication under section 11 of the Minimum Notice & Terms of Employment Act, 1973:

I find that the Act was contravened, and I award the Complainant the sum of €1872.00 in compensation

Payment of Wages, Minimum Notice