Complainant

Respondent

Anonymised Parties

An Office Administrator

A Wholesaler

Representatives

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-00034048-001

29/01/2020

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

CA-00034048-002

29/01/2020

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

CA-00034049-001

29/01/2020

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

CA-00034049-002

29/01/2020

The complainant was employed by the respondent as an office administrator on the 1st of January 2005, and her employment ended on the 24th of January 2020. She was paid €470.10 per week and she worked at 37 and a half hour week. She is claiming an entitlement to a redundancy lump sum under the Redundancy Payments Acts. She is also claiming that she is entitled to arrears of wages under the Payment of Wages Act.

The complainant said she was employed by the respondent as an office administrator in the respondent’s warehouse located in Grand Canal Quay. She lives in Wicklow and travelled to work by train and the train station is located near the office. The respondent notified the complainant that the office location was moving from Grand Canal Quay to Clonshaugh. The complainant informed the respondent that she he was not moving to Clonshaugh because it was too far away way from the train station and she would have to drive to work. The complainant met with the respondent to discuss the matter and she was offered a higher salary if she moved to Clonshaugh. The complainant decided that the new location did not suit her, and she rejected the offer. She said that she did not move to the new location because she travelled to work by train, a journey which took 45 minutes She would now have to use her car as there were no direct public transport links and the drive would take her a considerably longer time because she would have to travel on the M 11 and M 50 both of which are very congested at peak travel times. The complainant said that she would have considerably more expenses in running a car. The respondent asked her to work for one week in Clonshaugh to help to set up the office and she agreed. She requested redundancy from the respondent and it was refused.

Payment of Wages Act

The complainant said that she had a discussion with the respondent in September 2016 concerning her wages. She was granted an increase in salary of 4%.  The respondent confirmed the increase to her in an email to dated 30th of September 2016.  The complainant said that the increase was never added to her wages. She said her gross weekly salary should have increased from €470.10 per week to €502.80 per week. The complainant said that she only recently discovered the discrepancy in her salary, she approached the employer on the 7th of January 2020 and asked for her salary to be increased to the agreed amount, but the respondent failed to do so. 

The respondent said that the complainant has no entitlement to redundancy as her job still exists in the new location in Clonshaugh. The respondent said that the business has a licence to bond duty free and operated from a warehouse in Grand Canal Quay. It was not feasible to continue to do business from their premises in Grand Canal Quay because of the considerable logistic requirements of the business and the restrictions which operated in that location. There were health and safety risks involved in reversing and moving large trucks in a heavily populated area with ever increasing volumes of pedestrians and cyclists. It was decided to move to a more suitable location and a new premise was found in Clonshaugh. 

The staff were informed of the move and the complainant expressed concern about it. The respondent explained to her on a number of occasions how she was really needed in the company as she had acquired skill sets that were very useful in the operation of their business and had built up good relationships over the course of her employment.

The respondent said the complainant was offered and an enhanced salary, flexible time, petrol and toll expenses to encourage her to consider the transition from Grand Canal Quay. He also offered to collect her from Grand Canal Quay at the usual starting time and to take her to Clonshaugh with the return journey to the railway station every evening so that she could continue to travel in the same way as she did prior to the move. This meant she would have less hours at work and increased rate of pay. The complainant worked for the company in Clonshaugh for one week. She was collected from and brought back to the train station each day, but at the end of the week she resigned and sought a redundancy payment.

The respondent submitted that the complainant is not entitled to redundancy as her job still exists and that reasonable facilities were provided to her to take up the job in the new location. It was further submitted that the complainant got a new job closer to home. It was submitted that this was consistent with the complainant’s indication to staff in the office, well in advance of any indication from the company that that the location of the job was moving, that she wished to leave the employment and to take up a job nearer home.

Payment of Wages

The respondent submitted that this complaint was referred outside the statutory time limit for referring the complaint. He accepted that the complainant was offered a wage increase in an email in 2016. He said that the complainant never followed it up and he agrees that it was never paid to her.

The complainant is claiming that her employment with the respondent ceased by reason of redundancy. Section 7(1) of the Redundancy Payments Acts 1967-2015 provides:

“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “

Section 7(2)(a) of the Acts further provides that:

“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to

(a)   the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose for which the employee was employed by him, or has ceased or intends to cease, or carry on that business in the place where the employee was so employed.”.          

Section 15(1) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment:

“15. Disentitlement to redundancy payment for refusal to accept alternative employment

(1) An employee shall not be entitled to a redundancy payment if –

(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

The complainant is claiming that she is entitled to a redundancy payment because the location of her job moved from the Custom House Quay to Clonshaugh and the new location did not suit her because there were no direct public transport links

In considering whether the complainant’s decision to refuse to move the new location was reasonable in all the circumstances, I note the Labour Court in the case of Mr Garrett Browne v Ms Isabella Di Simo RPD1014 applied the English EAT case of Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 as the British legislation has similarly provisions. The Labour Court quoted the following passage from the EAT:

“the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

The English EAT in the Executors of J F Everest v Cox [1980] ICR415 stated that:

“The reasonableness of an employee’s refusal of suitable alternative employment depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view: ‘The employee’s behaviour and conduct must be judged, looking at it from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.”

Also, before quoting the above quotation from the Executors of Everest, the EAT, in the case of Hudson v George Harrison Ltd [2002] UKEAT 0571-02, 5/12/2002 stated: “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances”

The above cases show that in deciding on the reasonableness of the employee’s decision to refuse to take up her position in the new location, the employee’s personal circumstances are factors for consideration.

The respondent said that the complainant is not entitled to a redundancy payment as her job is still available to her. He said he offered her a pay increase, petrol and toll expenses to assist her with the move to the new location. He said he also offered to collect her from the train station in the morning and bring her back in the evening so that she could continue to come to work by train.

The complainant said that the reason she rejected the offer was because commuting 62 km each way by car on the congested M11 and M50 motorway was a lot more arduous and stressful journey and would take a considerably longer time than travelling by train, a journey which took 45 minutes. In addition, she said there was extra expenses commuting by car because she would have to upgrade her car, and this would cause an additional financial burden on her as well as the additional expenses maintaining the car.

I note that the offer to collect the complainant from the train station was made on the 30th of January and after she had resigned, so this offer was not a factor she could have considered before she resigned. Given the complainant had to change from commuting by train to work to commuting by car due to the relocation, on some of the most heavily congested roads around the city, the extra time it would take, the financial implications of running a car and the impact the commute would have on her quality of life, I am satisfied it was not unreasonable for her to refuse the job in the new location. In the circumstances, I am satisfied that the complainant is entitled to redundancy and I allow the appeal by the complainant against the respondent’s decision to refuse redundancy.

Payment of Wages

Time Limits

The respondent submitted that this complaint was referred outside the statutory time limit.

The Workplace Relations Act 2015 at Section 41(6) provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In considering the above sub-sections of the Act, I have applied the jurisprudence of the High Court Judgement in the case of Health Service Executive v John McDermott [2014] IEHC 331 concerning time limits in the Payment of Wages Act 1991 and the “date of the contravention to which the complaint relates.”. Judge Hogan held that: “In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

Judge Hogan went on to hold that there is a “rolling time limit in the law”.

The complainant is claiming that she is entitled to the 4% pay increase granted to her by the respondent in an email dated the 30th September 2016. The complainant referred the complaint on the 29th January 2020. Therefore, the cognisable period for the purposes of the Payment of Wages Act is 30th July 2019 to the 29th January 2020. The complainant is claiming a contravention of the Act on 24th January 2020 and this date of the alleged breach is within the cognisable period. Any claim in respect of the period prior to the 30th of July 2019 has been referred outside the statutory time limit and no extension of the time limit can be granted as no reasonable cause for the delay has been submitted by the complainant.

Substantive Issue

“ 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:

5.— (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.

(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,

Section 5(6) Where—

(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.”

It was accepted that the complainant was granted a 4% wage increase in an email dated the 30th of September 2016 which was not paid. In the circumstances, therefore I am satisfied that the increase in wages was properly payable to her. I find that the complaint is well founded.

CA-00034048-001 - Redundancy

I allow the appeal of the complainant against the respondent’s decision to refuse redundancy. I find that she is entitled to a statutory redundancy payment based on the following:

Date of Commencement                             1st January 2005

Date employment ended                             24th January 2020

Gross Pay Weekly                                           €502.80

This is subject to the complainant being in insurable employment.

CA-00034048-002 - Payment of Wages

I find that the complaint is well founded. Section 6 of the Payment of Wages Act provides for redress as follows:

6. (1) A decision of an adjudication officer under section 41 of 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,

The complainant was paid €470.10 per week and it should have been €502.80 the difference is €32.70 per week x26 = €850. I order the respondent to pay the complainant €850 compensation. This amount is subject to any lawful deductions.

CA-0034049-001 Redundancy

This is a duplicate complaint of the above complaint and it is closed.

CA-00034049-002 Payment of Wages

This is a duplicate complaint of the above complaint and it is closed.

Redundancy Payments Act, 1967 – 2015, Section 15(1), disentitlement to redundancy, reasonableness, Payment of Wages Act, 1991, Time Limits