Complainant

Respondent

Parties

Carmel  Moore

Doctor Fred Berndt - the estate of Dental Surgeon

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-00041772-001

24/12/2020

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

CA-00041772-002

24/12/2020

The Complainant commenced employment, as a Dental Nurse with the Respondent, a Dentist, on 8 March 2008. Her employment ended on 21 August 2019, when the dental surgery closed permanently. 

The Complainant subsequently submitted two complaints to the Workplace Relations Commission under the following references: 

1.       CA-00041772-001: claim under the Payment of Wages Act, 1991 

2.       CA-00041772-002: claim under the Redundancy Payments Act, 1967 

These complaints, which were received by the WRC on 24 December 2020 and were delegated to me by the Director General, are the subject of this adjudication.

Background:

According to the Complainant's evidence, the Respondent ceased working when he became ill in July 2019. The Complainant submitted that, while the Respondent intended to return to work, he passed away suddenly on 15 September 2019. 

CA-00041772-001: (Payment of Wages Claim)

The Complainant submitted that, when the Respondent became ill in July 2019 he intended returning to work. According to the Complainant, the Respondent instructed her to continue working, taking appointments etc, which she did from 22 July 2019 to 21 August 2019. 

The Complainant submitted that on 21 August 2019, the Respondent permanently closed the surgery. According to her evidence, the Respondent advised her that he would pay any wages owed to her at that time. However, according to the Complainant, she never received any of the wages owed due to the Respondent’s sudden death. 

Accordingly, the Complainant submitted that she is due 4.5 weeks wages covering the period from 22 July 2019 to 21 August 2019, at a rate of €400 nett per week. 

CA-00041772-002: (Redundancy Claim)

The Complainant stated that she claimed her redundancy by submitting her form RP50 to the Department of Employment Affairs and Social Protection (DEASP) in May 2020. According to the Complainant’s evidence, neither she nor the department official dealing with her claim had any success in establishing contact with the Respondent's representatives and/or his estate. 

Consequently, the Complainant stated that she was advised by DEASP that, in order to receive a redundancy payment in relation to her employment, her only option was to submit a claim to the WRC under the Redundancy Payment Act.

There was no representation on behalf of the Respondent at the hearing. Neither has there been any contact with the WRC from any party dealing with the deceased Respondent's affairs since the submission of the Complainant’s complaint in December 2020.

With regard to the issues arising in relation to this complaint, the Complainant made written submission and also provided oral evidence at the Hearing. As already stated above, there was no submission or attendance on behalf of the Respondent. 

Consequently, I have carefully considered and evaluated all of the uncontested evidence and submissions adduced in this regard in reaching my determinations as set out hereunder: 

CA-00041772-001: (Payment of Wages Claim) 

According to the Complainant’s uncontested evidence, she did not receive any payment from her employer, despite having attended for work, during the period from 22 July 2019 to 21 August 2019. This represents a period of 4.6 weeks. 

Section 1 of the 1991 Act defines wages as: 

“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,” 

Having carefully considered the evidence adduced, I am satisfied that the claim represents “wages” for the purposes of consideration under the Payment of Wages Act. 

The said Act states, as follows, at Section 5 (6) (a): 

“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),  

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.” 

Based on the above, I therefore find that the Complainant’s claim in this regard is well founded. 

An issue arises when calculating the amount of compensation due to the Complainant. According to the Complainant's evidence, she was in receipt of a weekly wage of €400 net, payment of which was made by way a cheque for €350 and €50 in cash. Evidence submitted in support of her complaint suggests that the Complainant has no proof that she was paid €50 in cash by her employer each week. In addition, evidence presented suggests that the Department of Social Protection calculated the Complainant’s gross weekly pay as €356.17 based on the cheque for €350, which she received each week. 

Consequently, taking all of the above into consideration, I find that the appropriate figure of compensation in this regard is €1,638.38 

CA-00041772-002: (Redundancy Claim) 

Section 7 of the Redundancy Payments Act [1967-2021] provides as follows: 

“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy……, shall, subject to this Act, be entitled to the payment of moneys which shall be known……as redundancy payment provided- 

(a)    he has been employed for the requisite period, and 

(b)    he was an employed contributor in employment which wasinsurable for all benefits under the Social Welfare Acts 

7 – (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to – 

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

Having carefully considered the Complainant’s evidence, I am satisfied that the Respondent’s business ceased trading on 21 August 2019. Consequently, I find that the Complainant has established the existence of a redundancy situation and that the complaint is, therefore, well founded. 

With regard to calculation of the Complainant’s Redundancy entitlement, I find that this should be based on a similar gross weekly wage to that used under the Payment of Wages complaint above, i.e., €1,638.38.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows in relation to the respective complaints: 

CA-00041772-001: (Payment of Wages Claim) 

I find that the Respondent has made a deduction from the wages of the Complainant, contrary to Section 5 (1) of the Payment of Wages Act. Consequently, I find that the Complainant’s complaint in this regard is well-founded and I find in her favour in the order of €1,638.38. 

This award represents the gross amount due to the Complainant and is, therefore, subject to the normal statutory deductions that would apply to wages in such circumstances. 

CA-00041772-002: (Redundancy Claim) 

I find that the Complainant has an entitlement to a statutory redundancy payment based on the following criteria: 

- Date of Employment Commencement: 8 March 2008 

- Date Employment Ended: 21 August 2019 

- Gross weekly pay: €536.17 

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. 

Redundancy Payment

Payment of Wages