Complainant

Respondent

Parties

Alan  O'Connor

Accent Solutions

Representatives

Dave Curran SIPTU

none 

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-00036644-001

12/06/2020

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

CA-00036644-002

12/06/2020

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

CA-00036644-003

12/06/2020

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

CA-00036644-004

12/06/2020

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-00036644-005

12/06/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken but I would consider what to do if a conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

The complainant withdrew CA-00036644-002 at the start of the hearing.

The complainant started this employment in October 2006 and was transferred to the respondent in February 2019. His employment ended on 31 March 2020.

CA-00036644-001 - Payment of Wages: the complainant submits he started working in this employment on 2 October 2006 and was paid on 25 November 2006, for his October work. This continued throughout his employment, where he was paid on the 25th of each month for work done the previous month. He was not paid this ‘back’ month when he left the respondent’s employment and he says he is entitled to €2,677.08.

CA-00036644-003 – Payment of Wages: the complainant submits that on 17 February 2020 he was told he was being made redundant and his termination date would be 31 March. Subsequently he was informed the company were hoping to extend his contract by a further three months. There were discussions between the parties and the complainant thought he was going to be kept on until two days prior to 31 March 2020. He was told his contract would not be extended and his termination date was to be 31 March. The complainant contends he was given notice on 29 March and should be paid for 6 weeks notice from that date, amounting to €3,346.35.

CA-00036644-004 – Payment of Wages: the complainant was paid a bonus of 10% on annual salary in December every year. He submits he was entitled to receive a pro rata bonus payment when he left the respondent’s employment on 31 March 2020. He says pro rata bonus payments had previously been made and it was therefore a practice he could rely on. He received a pro rata bonus payment in April 2008.

CA-00036644-005 - Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003): the complainant submits that when he tried to avail of his right for the respondent to contribute to health insurance cover they offered a much inferior package, valued at 10% of the scheme he had been in. The discussions were protracted and no contributions were paid before he left. The complainant submits he is entitled to receive 13 contributions, from February 2019 to March 2020, at €324.86, totalling €4,223.18.

CA-00036644-001 - Payment of Wages: the respondent says that, in preparation for responding to this complaint, they contacted the HR manager of the complainant’s previous employer and she confirmed they had no liability for a ‘back’ month when they took over the complainant’s employment. Therefore, the respondent says they have no liability for a ‘back’ month as claimed and the complainant has provided no evidence to support his claim.

CA-00036644-003 – Payment of Wages: the respondent confirms the complainant was given notice on 17 February with a leaving date of 31 March and this was never withdrawn. He, like all others involved were advised to look for alternative employment. There were discussions about the possibility of the complainant staying on for a short period but he was never told not to look for alternative employment. During the discussions the complainant sought to negotiate more favourable terms and there was never an agreement to the extension. Due to Covid-19 the possible extension was cancelled on 25 March. The complainant was advised his redundancy would proceed on 31 March 2020. The respondent submits that no agreement was reached on any temporary extension so the notice given on 17 February stood.

CA-00036644-004 – Payment of Wages: the respondent confirms the complainant was entitled to receive a bonus of 10% at the end of each year. This bonus is paid to all staff who are still working for the respondent when the bonus is assessed, in December. The complainant was paid a pro rata bonus for 2007 as he was promoted to a position eligible for a bonus during the year.He had no entitlement to receive a pro rata bonus when he left in March, as he would not be working for the respondent when bonuses would be assessed in December 2020.

CA-00036644-005 - Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003): when he transferred he was not in receipt of health insurance benefits from the transferor. Shortly after the transfer he asked the respondent to reinstate the contributions. The respondent confirmed the complainant had a right to health insurance contributions and invited him to join their scheme. When the complainant said the scheme was not the same as the previous scheme he was in, they told him it was substantially equivalent. They did not discuss monetary values, just the different schemes. The respondent tried to discuss this with the complainant but meetings had to be deferred as the complainant did not confirm he would attend. No agreement was reached as the complainant would not accept anything other than the previous scheme he had been in.

CA-00036644-001 - Payment of Wages: the complainant says he started working in this employment 2 October 2006 and received payment on 25 November 2006, for his October work and was entitled to this ‘back’ month when he left. The respondent says they inherited no such liability and the HR manager of the transferor confirmed there was no such liability.

I am aware this issue goes back to 2006 and I have no persuasive documentary evidence, such as a contract of employment. In these circumstances I conclude the complainant is unable to prove his claim and find the complaint is not well founded.

CA-00036644-003 – Payment of Wages: the complainant was told on 17 February 2020 he was being made redundant and his termination date would be 31 March. He made the respondent aware the company where he was working wanted someone to assist in the decommissioning of the plant for approximately three months and he was interested. There were discussions which went on into March but ultimately Covid-19 intervened and the work did not go ahead. The respondent says they encouraged the complainant to continue to look for alternative employment during this period and he attended for some interviews. I also note the respondent’s contentions the complainant sought to negotiate ‘more favourable financial terms to cover the extension period’.

The complainant hoped to stay on for a further three months but this was only going to be a temporary period for a particular piece of work which was different than he had been performing. If, as was the case, the work did not proceed he had no reason to believe he would not be leaving on 31 March. I therefore do not find in his favour and the complaint is not well founded.

CA-00036644-004 – Payment of Wages:  the respondent submits that the complainant was entitled to receive a bonus of 10% at the end of each year. However, the respondent’s evidence is that a bonus is only paid to staff who are still working for the respondent when the bonus is assessed. The complainant was paid a pro rata bonus for 2007 because he was promoted to a position eligible for a bonus during the year and was therefore assessed on a pro rata basis as he was working at the time when all bonuses were assessed.

I accept the respondent’s evidence that the complainant was treated the same as all other employees and was not eligible for a pro rata bonus when he left in March 2022 and find the claim is not well founded.

CA-00036644-005 - Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003): the complainant contends he was deprived of a condition of employment following the transfer in February 2019 when the respondent did not make contributions to the same health insurance scheme he had been in prior to the transfer. That the complainant was not in that scheme immediately prior to the transfer is not relevant and the respondent accepted his right to health insurance contributions. They say they met obligations in this respect when they invited him to join their scheme, which they said was ‘substantially equivalent’ to the scheme the complainant had been in.

Section 4 (2) of the Regulations states: “Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

The right was to health insurance contributions. The complainant wanted to be in the same scheme and the respondent offered entry to a scheme which they say was ‘substantially equivalent’. The complainant says the contributions would amount to one tenth of that made by the transferor to the scheme he was in, this is denied by the respondent who says no monetary values were discussed, only schemes. When directly asked the complainant says the scheme offered was inferior but could give no examples of provisions in the scheme that were inferior. In these circumstances I conclude the respondent complied with their obligation under section 4 (2) in respect of this condition of employment and the claim is not well founded.

CA-00036644-001 - Payment of Wages: for the reasons given above I find this complaint is not well founded.

CA-00036644-003 – Payment of Wages: for the reasons given above I find this complaint is not well founded.

CA-00036644-004 – Payment of Wages: for the reasons given above I find this complaint is not well founded.

CA-00036644-005 - Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003): for the reasons give above I find this claim is not well founded.

Not well founded