ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00029025
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Agent | Director |
Representatives | Self | Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038641-001 | 09/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038954-001 | 29/07/2020 |
Date of Adjudication Hearing: 04/03/2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
There were two parts to the complaint to be decided. The first relates to a complaint of unpaid wages on termination. The second relates to a complaint of unpaid holiday pay also on termination. For the purposes of both complaints- the complainant was being paid through a wage subsidy scheme with a top from the Respondent. |
Summary of Complainant’s Case:
The Complainant was employed as a sales rep/team leader from 15/07/2019 until 03/07/2020. Until the employment was affected by the regulations introduced to respond to Covid-19,his rate of pay was €450 weekly gross and €398.52 nett. In January 2020 he took one days paid annual leave. On March 13 work was halted and the employees were informed in writing they would be paid up until xx March. After this date they were paid a combination of a wage subsidy and a top up-€313.22 in a subsidy and €55.27 in a top -up totalling €368.49 gross per week and nett on average per week. He was required to participate in two zoom meetings per week- two hours on Wednesday and Friday. As he was a team leader he also prepared overheads as training material for some of these meetings. When he had family issues to attend to on two of the Fridays he was told off for not attending the meetings. On July 3rd he said he was leaving as he had another job. When he looked for his outstanding holiday pay and a back week wages he was laughed at and received nothing. His claim is for outstanding wages and holiday pay for the period January to July 3rd less the day in January. |
Summary of Respondent’s Case:
The Respondent rejected the complaint. The complainant was not working during the period from March 13th. Those zoom meetings were arranged only to keep in touch with everyone and the Complainant was paid for these. The business was closed due to Covid and has not reopened. Employees were paid up to the end of March 2020, but this included any outstanding holidays. Everything was being done to keep the jobs in place. The Complainant did not attend two meeting held on Fridays without any notice but was still paid for them. As the Complainant was paid in week twelve for week eleven when he left, no wages were outstanding. |
Findings and Conclusions:
Payment of Wages Act 1991(incorporating the two complaints) Holiday pay on termination For the hours he worked, the Complainant was entitled to holiday pay calculated on his gross pay from 1 January 2020 to 3 July 2020. There was no notification to him that any of his pay after 13 March 2020 included holiday pay. Accepting that the Respondent and other Directors made every effort to keep the employees on full pay and then partial pay for as long as possible, they cannot unilaterally convert some or all the payment into holiday pay. The period 1 January 2020 to 13 March 2020 is calculated at 40 hours per week. From 14 March to 3 July the maximum hours worked are those when the Complainant was either at the remote meetings on Wednesday and Friday(two hours each day) and when preparing overheads for those meetings-a maximum of two further hours per week. An average of six hours is allowed for working time and the calculation of leave after March 13th, 2020.The two days he did not attend those meetings do not constitute working time for the purposes of calculating annual leave. The maximum number of hours worked for the purposes of calculating the Complainants leave entitlement is 10 x 40 plus 2 days (16 hours)=416. 16 weeks x 6 hours=96 =512. Less 8 hours taken in January and four hours for the two Fridays he did not attend the remote meeting=500 hours worked As his hours of work varied over the period, 8% is used to calculate the amount of holiday hours due on termination = 40hours or one weeks pay at termination=€371 Complaint re unpaid wages Following the hearing of the parties, I am satisfied that the Complainant was paid one weeks wages at the time of termination-and the Respondent did not want to pay it for a few reasons and withheld payment. That week is his back week, which is to be calculated at the weekly rate he was being paid at the time of his termination. This amounts to €371-his normal nett wages at that time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Payment of Wages Act,1991 CA-00038641 Arrears of Wages The complaint regarding unpaid wages is well founded. The Respondent is to pay the Complainant €371 nett compensation in respect of this aspect of complaint Holiday Pay The complaint regarding unpaid holiday pay on termination is well-founded. The Respondent is to pay the Complainant €371 nett in respect of this aspect of the complaint. |
Dated: 26th April 2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Holiday Pay/Wage Subsidy Scheme/Arrears of Wages |