Complainant

Respondent

Anonymised Parties

Complainant

Company B;

Representatives

(self)

 (self)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028396-001

14/05/2019

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

CA-00028396-002

14/05/2019

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

CA-00028396-003

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00028396-004

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00028396-006

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00028396-007

14/05/2019

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

CA-00028396-009

14/05/2019

The Complainant worked for Company A from February 2010 to 1 July 2018 of which the Respondent in this case, Company B was one of two Directors. He gave evidence that the Company was declared bankrupt at High Court Proceeding without his knowledge. The Complainant became an employee of Company B on July 2nd 2018 resigning with effect from December 21st, 2018

At the hearing, the Complainant set out her claims against Company B for the period 2 July 2018 to 21 December 2018 as follows:

Payment of Wages Act 1991: Unpaid overtime; unpaid wages

Organisation of Working Time Act 1997: Unpaid Holiday Pay

Protection of Employees Transfer of Undertakings Regulations 2003: unpaid holiday pay owed by the previous employer, Company A.

The rate of pay was 332.43 euro nett. Hours of work 9-5 Monday to Wednesday; 9-3 Thursday and Friday. The Complaints were received by the WRC on 14 May 2019

Payment of Wages Act 1991: The Complainant did not receive any pay from Company B until September 4th when she received €2659 or 8 weeks pay. Her final payment was 332.43 on December 20th . Her claim is that she is owed two weeks pay-one back week and her final weeks wages.

Regarding overtime, the Complainants contract says that she would receive paid overtime. She spoke of working many hours of overtime and that the Respondent Representative  knew she was working extra hours because he saw her there or was on the phone to her. At the hearing, she calculated her claim as €220.

Organisation of Working Time Act 1997: The Complainant stated that she received no holiday pay from Company B. A cheque for €332.44 dated 21 December was given to her in a card at Christmas with no paperwork and as she had worked with the Respondent for many years, she thought it might be a Christmas gift or bonus-nothing was said about wages or holiday pay.

Transfer of Undertakings: The final payslip from Company A said that she was due 66.85 in holiday pay which was on her final payslip from Company A but never received. She was not sure who owed the money, but it is owed to her.

Payment of Wages Act 1991: The Respondent Representative stated that his financial affairs are handled on his behalf. When he learned the Complainant had not been paid after a few weeks, he immediately made arrangements to have her paid. He provided an email sent to the Respondent on March 6, 2019 which informed her that she commenced employment on July 2nd, 2018 and did not work a back week. He referred to a cheque for €332.43 dated 21 12 18(copy provided) which was given to the Complainant. The claim for unpaid wages was rejected.

Regarding the claim for overtime, this was not raised with him during the employment. He was not on the premises very often and he did not know that the Complainant worked overtime. Asked by the Adjudicator how the Complainants hours of work were recorded, the Respondent stated that there was no recording system.

Organisation of Working Time Act, 1997, the email to the Complainant on March 6th, 2019 set out holidays due and paid as Due: 72hrs Holidays taken:41.65 Holidays balance 30.35 hours. It continued ‘That means that your file payslip had 30.35 extra hours @9.55 which meant that your net pay was 533.17 and since you got 332.43 paid into your bank account it left a balance of 200.74 which I think Robert paid by cheque.’

In an email of 7 March copied to the Complainant, the Respondent stated: ’The cheque I gave to X was for €332.43 so she was overpaid by €132.43.’ The claim for holiday pay was rejected.

Asked by the Adjudicator what leave the Complainant had taken, the Respondent replied that she had taken some sick leave. He was asked to provide details of the days he contended were paid as holiday pay as he had no records to support the calculation of 41.65 hours taken as per the email of March 6th, 2019. No additional information was provided to support the claim that holiday pay was paid to the complainant and this decision takes into account the evidence, such as it was, presented by the Respondent at the hearing.

Transfer of Undertakings 2003 Regulations: The Respondent Representative stated that Company A was a partnership. He was a Director and learned that the Company was put into liquidation   by the other partner in the High Court. The stock from the previous business was divided between him and the previous second  Director of Company A. A new contract of employment was drawn up for the complainant who was employed on a wage subsidy scheme. He did not know anything about the claim for outstanding holiday pay.

Payment of Wages Act 1991

The Complainant worked for 25 weeks between 2 July 2018 and 21 December 2018. From the bank records supplied by the Complainant, taking onto account the cheque dated 21 December 2018,the Complainant received 24 weeks wages. This leaves a balance of one week owed by Company B amounting to €332.43.

In relation to overtime, the evidence of the Complainant was found to be the more credible than the Respondents claim that he did not know what hours she worked as he was rarely there. Noting that the Complainant did not make any claim for excess hours while she was in the employment, while at the same time noting that the Respondent kept no record of her hours worked, a sum equivalent to half of that claimed is justified. This amounts to €110.The Complainant has a valid complaint under the Payment of Wages Act,1991 against Company B.

Organisation of Working Time Act,1997.

For the period of her employment with Company B, the Complainant accrued an entitlement to ten days holidays , equivalent to €664.86. No records were provided to support the respondents claim to have granted the complainant  paid holidays during her employment with Company B, or any agreement by her to take specified days as holidays or that her final cheque for 332.44 included holiday pay. That payment was either her final weeks wages or it was some other payment, it cannot be both. It as matter of concern that Company B  made no record of the complaints holidays and that he may consider it acceptable to unilaterally convert other days of absence into holiday pay.

The Complainant has a valid complaint against Company B under the Organisation of Working Time Act,1997.

Transfer of Undertaking 2003 Regulations: Accepting that the previous employer Company A was liquidated, there is no Transfer of Undertakings to Company B which would make the Respondent liable for any holiday pay owed by Company A.

The Complainant does not have a valid complaint against Company B in relation to her claim for unpaid holiday pay not included in her final payment from the previous employer, Company A.

For the reasons set out in the conclusions/findings above, I decide as follows:

Payment  of Wages Act 1991: In accordance with Section 6 or the Payment of Wages Act 1991-2017,

I decide that the complaints brought by the Complainant against Compnay B are well founded in respect of an underpayment of wages and overtime comprising €323.43 nett wages and €110  in unpaid overtime . Company B is to pay the claimant €433.43 nett in settlement of her claim under the Payment of Wages Act,1991.

Organisation of Working Time Act 1997: I decide that the complaints brought by the Complainant against Company B are well founded in that she did not receive her holiday entitlements in accordance with the provisions of the legislation during or at the termination of her employment. Noting that the employer kept no records in relation to holiday pay and simply decided to substitute holidays for sick leave, I decide that the claimant is to receive €646.86 in net pay  being the amount of holiday pay owed to her and an additional €300 for the contraventions of her statutory entitlements during and at the cessation of her employment. This payment also to act a deterrent to the respondent continuing with the practices evident in this case including the use of holiday entitlements for other purposes. Company B to pay The claimant  €946.86 in settlement of her complaints under the Organisation of Working Time Act,1997.

Transfer of Undertakings Regulations 2003

In consideration of the finding  that Company A, having been liquidated by the High Court did not transfer the employment relationship between the complainant  and that Company to the Respondent in this case, Company B I find that the claim that Company B  owes €66  to the claimant in holiday pay which was outstanding at the time the previous employment relationship was terminated, is not well founded.

Unpaid wages and overtime pay ; Unpaid Holiday Pay; Holiday Pay on change of employer/liquidation