Complainant

Respondent

Anonymised Parties

Business Development Manager

Manufacturing Company

Representatives

Self

Sheehan & Company Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00033627-001

06/01/2020

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

CA-00033627-002

06/01/2020

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

CA-00033627-003

06/01/2020

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

CA-00033627-004

06/01/2020

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

CA-00033627-005

06/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033627-006

06/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033627-007

06/01/2020

The Complainant started working in the Respondent’s Head Office in the United States on the 4th January 2016 as a Sales Representative for the Respondent's Commercial Sales Team.

When he started, the Complaint was in the United States on a J1 Visa which was due to expire on the 26th December 2016. The Complainant was unable to secure the necessary visa to enable him to continue working in the United States.

To enable the Complainant to continue working with it, the Respondent established an Irish operation which was incorporated on the 16th May 2017 and the Complainant was its only employee. The Complainant employment with the Respondent’s Irish operation commenced on 1st November 2017. The Respondent’s Irish operation ceased trading in 2019 which resulted in the termination of the Complainant’s employment.

The parties are in dispute over the actual termination date of the Complainant’s employment and the duration of his service with the Respondent.

The Complainant submits as follows:

The Complainant worked for the Respondent initially in the US and subsequently in Ireland for almost 4 years.

The Respondent’s decision to wind down its Irish operations and terminate the Complainant’s employment was never communicated to him.

From January 2019 until November 2019, the Complainant worked in Ireland supporting areas of the company in the United States. He was never made aware of that his position being made redundant.

The Chief Executive Officer (CEO) visited Dublin on 17th July 2019 when he informed the Complainant of there not being a long term opportunity to stay on in Dublin. The CEO agreed to hear a proposal for the Middle East market and the Complainant continued to work on this as well as working remotely with distributors and the commercial sales team in the United States.

On 8th September 2019, the Complaint met in the United States with the CEO who informed him that the Respondent was not prepared to go ahead with the opportunity in the Middle East as proposed by the Complainant. The Complainant understood that it was no longer possible for him to continue working for the Respondent in the United States. However, the CEO agreed that the Complainant would remain on the Respondent’s payroll and would evaluate a business opportunity in Macau. The Complainant offered to move to a consultancy package but the CEO insisted that he remain on a salary.

The Complainant met with the CEO and the Chief Financial Officer (CFO) the next day to thank them for his time working with them in the United States and made it very clear that he would continue to work on the Macau project. The Complainant contends that no member of senior management informed him that his position was being made redundant. Nor did they instruct him not to proceed with the Macau proposal. The Complainant believes that his email of 19th September 2019 to the Respondent’s senior management team confirms this: “I am currently heading away for the next week with my brothers to watch the Rugby World Cup and look forward to getting working on those projects upon my return.”

The Complainant had to make contact once again on 3rd October 2019 as he not received his salary on time. Following a confusing conversation with the Chief Operating Officer (COO), he emailed the Respondent’s senior management team to say: “I really need closure on the change of my employment status. I would appreciate if you could forward the same in writing.”

The Complainant contends that despite seeking clarification of his employment status a number of times, he only received such clarification on 8th November 2019 in an email from the CFO. Prior to this email, the Complainant understood that he was still employed by the Respondent.

After researching his rights as an employee of a company in Ireland, the Complainant understood that the way in which the Respondent had handled his situation was not correct.   He informed the CFO of the procedures and processes which are required in Ireland.

The Complainant made a final request to the CFO on 11th of December 2019 requesting payment of his overdue salary and detailing how his salary payments had been delayed over the two years during which he had worked for the Respondent in Ireland.

The Complainant still had full access to his work email up until 11th December 2019.   He does not understand why this would be the case if his position had been made redundant 3 months previously.      

The Respondent submits as follows:

The Respondent agrees that the Complainant was employed by the Respondent as its Business Development Manager Europe from the 1st November 2017. However, the Respondent contends that the Complainant’s employment ended on 13th September 2019 and not on 8th November 2019 as asserted by the Complainant.

In January 2019, the decision was made to wind down the Respondent’s Irish operations which meant terminating the Complainant’s employment.

The Chief Executive Officer (CEO) flew to Ireland in July 2019 to meet with the Complainant to tell him in person that the Respondent would be ceasing its Irish operation. The Complainant rang the CEO approximately two days later and enquired whether the Respondent would be interested in a new business venture in Dubai. The CEO told him that he would discuss the matter with the Chief Operating Officer (COO) and the Chief Financial Officer (CFO), and if they were interested, they would arrange for the Complainant to travel to the United States to give a presentation. They decided to hear the presentation which was made on the 23rd August 2019 and afterwards they requested time to think about it. The Complainant insisted on an answer by early September 2019 as, if it was not to proceed, he wanted to return to Ireland for family reasons. The Complainant also mentioned the possibility of business opportunities in Macau.

The Respondent decided not to proceed. The CEO met the Complainant and informed him of this decision on the 8th September 2019 and informed him that his employment would end on the 13th September 2019. The Complainant was understandably upset by this news and texted the Chief Operating Officer to say "Hey [COO], just finished meeting [CEO]. Disappointing news but completely it's a business and I appreciate that the consideration and opportunity you guys have provided me for the past four years". He then sent another text to the COO that said "I plan on finishing up what I committed to this week then heading home. Will you be in the office tomorrow?”

The Complainant emailed the CEO, COO and CFO on the 19th September 2019 thanking them "for the opportunity you have allowed me within the position over the past four years" and stating that "it is both frustrating and disappointing for all of us that it is not possible for me to return to the [Respondent] in the US” and stating that he would work on projects upon his return.

It is the Respondent’s position that the Complainant was aware that his last day of employment was the 13th September 2020 and he bade farewell to everyone in the office. The Respondent paid the Complainant up to the 13th September 2019.

On the 3rd October 2019 the Complainant emailed the CFO enquiring about payment of his September salary and enquiring if this could be paid to him "directly and not on payroll". This request was refused by the Respondent.

On the 7th October 2019, the Complainant emailed the COO stating, inter alia, "I was really taken aback to learn that my employment with [the Respondent] has ended. I am quite confused to hear this after discussing my role in future projects, such as Macau, during the week of 9/9 in [location in the US], which I then committed to in my email on 9/19" Can you please clarify my employment status?”

A call took place the next day between the Complainant and the COO during which the COO again explained the position. On the 9th October 2019, the Complainant emailed the CFO to say "[the COO] spoke with me yesterday and clarified everything. Would it be possible to discuss my September salary and everything with you soon?"

The CFO replied confirming that monies had been transferred to the Complainant’s Irish bank account to pay him up to the 13th September 2019 and asking him to complete his AMEX/Concur reconciliation as his work AMEX card had been cancelled and asking him to return company property. The Complainant replied thanking the CFO for transferring his salary and advising that he had "resubmitted the Concur report with changes" and stated that "I really need closure on the change of my employment status. I would appreciate if you could forward the same in writing".

The CFO emailed the Complaint on the 8th November 2019 setting out the position and the Complaint replied the same day thanking the CFO for his email and clarifying the "change in my employment status". The email continues "I have been made aware that as my position is being made redundant I am legally entitled to statutory redundancy payment”. He listed a number of heads of claim and he sought payment of his salary from the 13th September 2019 up to the 4th October 2019 when he states he was dismissed in his phone call with the COO. It is noteworthy that the Complainant states that his employment ended on the 4th October 2019 and not the 8th November 2019 as alleged in his Workplace Relations Commission Complaint Form.

The CFO replied by email on the 20th November 2019 setting out the Respondent’s understanding of the redundancy requirements, the notice the Complainant was entitled to and dealing with his claim for outstanding expenses. The one week's notice pay was paid. The Complaint replied on the 22nd November 2019 alleging that he was entitled to "at least two weeks written notice of redundancy and paying the employee their redundancy payment on the date of dismissal". The Complainant alleged that he "received written notification of my dismissal on 8th November 2019 which brings me within the required period of service".

The CFO replied on the 27th November 2019 asking the Complainant to explain the fair procedures he alleges should have been followed, when making him redundant, the legal requirement to give two weeks’ written notice and why he alleged that his employment ended on the 8th November 2019 when his email of the 8th November 2019 confirms that his employment ended on the 13th September 2019.

The Complainant responded on the 2nd December 2019 stating "For the record the first official written notification of my redundancy was received from you by email on 8th November 2019".

The CFO replied on the 6th December 2019 clarifying the basis for his request for information in his previous email and repeating that the Complainant’s "employment ended on the 13th September 2019 and there is no reality to your proposition that you were notified that you were being made redundant in my email of the 8th November". The Complaint replied on the 11th December 2019 raising issues about delays in payroll between April 2018 and requesting payment of outstanding salary up until the 8th November and the redundancy payment which was also due on the day of notice.

The CFO replied by email on the 23rd December 2019 acknowledging that there "were some administrative issues regarding the payment of your salary which unfortunately gave rise to delays. As regards the communications you have listed, I agree that various discussions did take place but I do not accept that there can be any dispute that your employment ended in mid-September". The CFO attached a copy of emails between the Complainant and the COO including The Complainant's email of the 7th October 2019 and the CFO’s email of the 9th October 2019. The Complainant did not respond and instead filed his complaint with the WRC on the 6th January 2020.

Section 4 (2)(a) of the Minimum Notice & Terms of Employment Act of 1973 obliges an employer to give an employee notice of the date of termination of the contract of employment. The amount of notice required is based on the length of service of the employee.  

The date upon which the Complainant was served notice is contested in the herein case.

The Complainant asserts that he should have been provided with written notice of the termination of his contract of employment and that he only received written notice on the 8th November 2019.  The Respondent disputes the Complainant’s assertion and contends that the Act does not require notice of termination to be in writing. The Respondent asserts that the Complainant received oral notice of the termination of his contract of employment with the Respondent on 8th September 2019 and that he was paid notice up to 13th September 2019.

The question of the necessity for written notice was addressed in the Supreme Court judgment in Bolands Ltd (In Receivership) v Ward, (1988) I.L.R.M. 382 where Henchy J. stated that the form of notice is not provided for in the Act of 1973 and does not even require it to be in writing:

“… The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given—whether orally or in writing, in one document or in a number of documents—conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum …”

The Complainant also appears to assert that a redundancy is only effective when it is notified to an employee in writing.

Section 17 of the Redundancy Payments Act provides that written notice of redundancy is only required where an employee has at least two years’ service with an employer:

“17. Notice of proposed dismissal for redundancy

(1) An employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal.”

In light of the above, I find that the Respondent was not required to provide the Complainant with notice of the termination of his employment in writing.

I must now decide if the Complainant was aware, prior to 8th November 2019 that his employment with the Respondent had come to an end.

In his written evidence, the Complainant submitted a copy of an email which he had sent to the Respondent on the 7th October 2019 in which he wrote: “I was really taken aback to learn that my employment with [the Respondent] has ended”.

This email indicates very clearly to me that the Complainant was aware on the 7th October 2019 that his contract of employment with the Respondent had been terminated.

This proposition is supported by a further email which the Complainant sent to the Respondent on the 15th October 2019, and adduced in evidence by the Complainant, in which he wrote: “I am at loss as to why no one will confirm my termination officially.”

The Respondent also adduced a number of emails which were exchanged between the parties and which suggest that the Complainant was aware prior to 8th November 2019 that his contract of employment with the Respondent had ended.

On 9th October 2019, the CFO wrote to the Complainant as follows:

“I sent a transfer to your Irish bank account just now and it should be received tomorrow.

The amount is prorated for the number of days worked between September 1st and September 13th.

We have cancelled your [Respondent] AMEX card, so please complete your AMEX/Concur reconciliation ASAP. In addition, will you please pack up all [Respondent property] in your possession and return it to my attention.”

In my view, it is very clear from the above email that the Respondent believed that the Complainant’s employment with it ended on the 13th September 2019. Furthermore, the Respondent’s request to the Complainant to return all of the Respondent’s property in his possession would appear to me to represent a very clear signal that the employment relationship between the parties had ended.

The Complainant responded later the same day to say:

“Thanks for transferring my salary. I have resubmitted the Concur report with changes.

I really need closure on the change of my employment status. I would appreciate if you could forward the same in writing.”

It is noteworthy that the Complainant did not raise any queries about his termination date in the above email and seemed to have accepted that Respondent’s position that he was only due salary up to 13th September 2019.

I must now decide the actual date of termination of the Complainant’s contract of employment with the Respondent.

On the 8th November 2019, after he had received written confirmation of the termination of his employment, the Complainant emailed the Respondent to seek a redundancy payment:

“Thank you for your email and for clarifying the change in my employment status.

I have been made aware that as my position is being made redundant I am legally entitled to statutory redundancy payment of:

·       The remainder of my salary up until the day I was dismissed of my role at [the Respondent](9/13/2019 - 10/4/2019 [the COO’s] phone call)

·       Car allowance

·       Two-week's notice pay (10/4/2019 - 10/18/2019)

·       Two weeks of pay per year I have worked for the company (Tax-free)

·       A week bonus pay (Tax-free)”

In the above email, the Complainant suggests he was notified of the termination of his contract on the 4th October 2019 and that he was entitled to two weeks’ notice which would give him a termination date of 18th October 2019. This contradicts his claim as set out in his WRC Complaint Referral Form, and his position as asserted at the adjudication hearing, that his date of termination was the 8th November 2019.

Having considered the written submissions of both parties and all the evidence adduced at the adjudication hearing, on the balance of probabilities, I accept the Respondent’s evidence that the Complainant was notified of the termination of his employment on the 8th September 2019.

Section 4 of the Minimum Notice and Terms of Employment Act 1973, sets out the minimum period of notice to which an employee is entitled based on his length of service:

“(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—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

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

Both parties agreed that the Complainant commenced employment with the Respondent on the 1st November 2017. In light of my finding above that the Complainant was notified of the termination on his employment on the 8th September 2019, I find that he had been in the continuous service of his employer for less than two years and, therefore, is entitled to a notice period of one week which gives him a date of termination of 15th September 2019.

The Complainant submits that he was only paid up until 13th September 2019.

The Complainant asserts that the date of the termination of his contract with the Respondent was 8th November.

The Complainant submits that the Respondent has not paid him for the period from 14th to 30th September 2019; all of October and from the 1st until the 8th November. The Complainant is also seeing compensation for the late payment of the portion of his September salary which was paid to him.

It is the Respondent’s position that the Complainant’s employment ended on the 13th September 2019 and he was paid up until that date.

This position is supported by the Complainant seeking payment of his wages from that date per his email of 8th November 2019 in which he wrote:

“Thank you for your email and for clarifying the change in my employment status.

I have been made aware that as my position is being made redundant I am legally entitled to statutory redundancy payment of:

·       The remainder of my salary up until the day I was dismissed of my role at [the Respondent] (9/13/2019 - 10/4/2019 [the COO’s] phone call)

·       Car allowance

·       Two-week's notice pay (10/4/2019 - 10/18/2019)

·       Two weeks of pay per year I have worked for the company (Tax-free)

·       A week bonus pay (Tax-free)”

It is therefore submitted that no wages are due within the meaning of section 6 of the Payment of Wages Act.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the Payment of Wages Act, 1991.

Relevant Legislation

The relevant sections of the Payment of Wages Act are sections 5(1) which prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled and section 5(6) which provides that the non-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error. I have included the relevant sections of the Act below.

Section 5 (1) of the Payment of Wages Act, 1991 provides that –

“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.”

Section 5(6) of the Act provides that 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 employerfrom the wages of the employee on the occasion.”

Findings

The Complainant has submitted two claims under the Payment of Wages Act – that the Respondent has not paid him or has paid him less than the amount due to him (CA-00033627-001) and that he did not receive the appropriate payment in lieu of notice of termination of his employment (CA-00033627-002)

CA-00033627-001   My Employer has not paid me the amount due to me

This claim is grounded on the Complainant’s assertion that his employment with the Respondent ceased on the 8th November 2020.   Elsewhere in this decision I have found that the Complainant’s employment with the Respondent ended on 15th September 2019. I find, therefore that the Complainant is not entitled to payment of wages from the 15th September 2019 until the 8th November 2019.   Payment of wages for the period from 13th to 15th September 2019 is addressed below.

CA-00033627-002   Payment in Lieu of Notice

Elsewhere in this decision I have found that the Complainant was notified of the termination of his employment with the Respondent on the 8th September 2019 and that he was entitled to one week’s notice giving him a termination date of 15th September 2019. Both sides agree that the Complainant was only paid until the 13th September 2019. I find, therefore, he was not paid the appropriate payment in lieu of notice of termination of employment as required under section 4 of the Minimum Notice and Terms of Employment Act, 1973. Accordingly, I find that the Complainant is entitled to an additional two days’ pay which amounts to €235.

Delayed payment of salary

In his submission, the Complainant contended that the Respondent had been late paying his salary on a number of occasions. At the hearing, I explained that I do not have the jurisdiction, under the Payment of Wages Act, 1991, to make any findings in relation to the late payment of wages.

CA-00033627-001   My Employer has not paid me the amount due to me

I find that this complaint is not well founded.

CA-00033627-002   Payment in Lieu of Notice

I find that this complaint is well founded and I direct the Respondent to pay the Complainant €235.  

The Complainant submits that he received written notice of his redundancy on the 8th November 2019. The Complainant contends, therefore, that he had over two years of service with the Respondent and was entitled to payment in respect of his redundancy.

The Respondent submits as follows:

The Respondent submits that it ceased trading and therefore the Complainant’s position was made redundant in September 2019 within the meaning of the Redundancy Payments Act.

Pursuant to the Redundancy Payments Act, to qualify for a redundancy payment, the employee must have continuously worked for the employer for at least two years at the date the employment ends.

The parties agree that the Complainant’s employment commenced on the 1st November 2017. The Respondent contends that the Complainant’s employment ceased on the 13th September 2019. Accordingly, it is the Respondent’s contention that the Complainant does not satisfy the minimum continuous employment requirement and is, therefore, not entitled to a redundancy payment.

Without prejudice to the foregoing, if the Adjudication Officer does not find that the employment ceased on the 13th September 2019, then the Respondent relies upon the Complainant’s email of the 7th October 2019 in which the Complainant states that he "was really taken aback to learn that my employment with the Respondent has ended” in reference to the call he had with the COO on the 4th October 2019.

It is therefore clear that, at the latest, the Complainant had been informed that his employment had ended on the 4th October 2019 in which case he does not satisfy the requirement to have two years’ continuous service and is therefore not entitled to a redundancy payment.

There is no reality to the Complainant’s proposition that he was entitled to written notice of the termination of his employment which he only received in the Respondent’s email of the 8th November 2019 and is therefore entitled to a redundancy payment.

There is no requirement that the notice terminating an employee's employment be in writing.

The matter for me to decide is if the Complainant is entitled to payment under the Redundancy Payment Act, 1967 (the Act).

Relevant Legislation

Section 7(1) of the Act sets out the general right to a redundancy payment as follows:

“(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

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

Section 7(5) of the Act provides the following definition of “requisite period”:

“In this section “requisite period” means a period of [104] weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.”

Both sides agreed that the Complainant’s employment with the Respondent’s Irish operation commenced on 1st November 2017. Elsewhere in this decision, I have found that the Complainant’s employment with the Respondent ceased with effect from the 15th September 2019. I find, therefore, that the Complainant does not have the requisite service to entitle him to a payment under the Redundancy Payment Act, 1967.

Accordingly, I find that the Complainant’s complaints under the Redundancy Payments Acts are not well founded.

CA-00033627-003   I did not receive any redundancy payment

I find that this complaint is not well founded.

CA-00033627-004   I did not receive my correct redundancy payment

I find that this complaint is not well founded.

CA-00033627-005   I did not receive proof of my employer’s inability to pay redundancy

I find that this complaint is not well founded.

The Complainant submits as follows:

The Complainant assert that he did not receive his statutory minimum period of notice or receive any rights during this period of notice.

The Complainant asserts that the Respondent did not pay him for any days after the 13th September 2019.

The Respondent submits as follows:

Pursuant to section 4 of this Act, employees with less than two years continuous service are entitled to one week's notice of the termination of their employment.

In either of the scenarios dealt with in relation to the claim under the Redundancy Payments Act above, the Complainant has less than two years continuous service and was, therefore, entitled to one weeks' notice.

The Complainant was paid for the one week's notice to which he was entitled.

In light of my finding that the complaint under Payment of Wages Act relating to the payment of notice (CA-00033627-002 Payment in Lieu of Notice) is well founded, I find that the complaints under the Minimum Notice & Terms of Employment Act, 1973 have been disposed of.

CA-00033627-006   I did not receive my statutory period of notice

I find that this complaint is not well founded.

CA-00033627-007   I did not receive all my rights during the period of notice

I find that this complaint is not well founded.

Notice in writing; Payment of Wages; Redundancy; Minimum Notice