ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031215

Parties:

	Complainant	Respondent
Parties	Michael Jones	Extreme Event Ireland Limited, EI Travel Group

Representatives

Self

Keith McDonnell

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-00039398-001	27/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041042-001	16/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00041042-002	16/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00041042-003	16/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00041042-004	16/11/2020

Date of Adjudication Hearing: 15/04/2021

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complains.

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties confirmed that they understood this and were agreeable that the hearing would proceed on that basis. It was also explained to the parties that where there is a serious conflict of evidence in the complaint before an Adjudication Officer that will require an adjournment of the hearing to await the amendment to the Workplace Relations Act, 2015 to grant Adjudication Officers the power to administer the oath and to provide a punishment for the giving of false evidence. Both parties confirmed their understanding of this point.

Background:

The complainant commenced employment with the respondent on 25/02/2019 as Director of Marketing. He was made redundant on 13/03/2020 due to the Covid-19 pandemic. In a meeting with the managing director he was offered another role subject to a 20-50% pay cut. He was unable to accept this offer. The complainant did not receive any further communication from the respondent and did not receive holiday pay, pay in lieu of notice and outstanding expenses. He was paid fortnightly and received €2,115.38. The complainant submitted his complaint to the WRC on 27/08/2020.

Summary of Complainant’s Case:

The complainant was employed as a Director of Marketing with the respondent. The respondent operates a tourist company and operates tours for international tourists in Ireland. He commenced employment on 25/02/2019. He was left off on 13/03/2020 and at a meeting with the Managing Director on 15/06/2020 he was informed that he could return to a different role but on significantly reduced terms which involved a pay cut of between 20-50%. While this offer was not confirmed in writing he contacted the respondent on 26/06/2020 and informed him that he could not accept the alternative offer. He did not receive a reply but noted that he was removed from the HR software on 20/07/2020. He received no further communication from the respondent. His last pay slip was issued on 23/03/2020 and to date he has not received holiday pay, pay in lieu of notice and vouched outstanding expenses which amount to €1,739.96. He is paid fortnightly and received €2115.38.

Summary of Respondent’s Case:

The respondent operates a tourist company and operate tours for international tourists in Ireland. In March 2020 the respondent had to close due to the Covid-19 pandemic. There were 170 staff employed and they had no choice but to let everyone go. The respondent confirms that the complainant was employed in a key management position. As there was no clarity on when the business could resume and with no revenue forthcoming it was clear that tough and difficult decisions had to be made. The respondent had conversations with most staff including the complainant and he mentioned the possibility of another role in the company. When the complainant confirmed on 26/06/2020 that he could not accept the offer he then accepted this as the complainant handing in his notice.

The respondent notes that the complainant cooperated with handover arrangements and they discussed his holiday pay and expenses. The respondent acknowledges that the complainant offered to offset some of the expenses he was due against a company laptop and company mobile phone. The respondent confirms that he accepted this offer, and he accepts that this left a balance of €964.96 due to the complainant for expenses.

The respondent submits that the company is still not operational and does not envisage a return to international business until the second quarter of 2022. The company survives on a seasonal business and in the absence of any business he is unable to make any payments.

The company has managed to survive with some State assistance in relation to critical costs such as rent, insurance and vehicle maintenance. There are no staff currently on the payroll.

The respondent wishes to put on record that he commits to paying the complainant all the money he is due but is unable to do so until the company is operational again.

The respondent also wanted to put on record that the complainant was and excellent employee whose skillset contributed a lot to the business.

Findings and Conclusions:

CA-00039398-001: It was confirmed at the hearing that this is a duplicate complaint of complaint reference no CA-00041042-001 and it was confirmed that this is withdrawn.

CA-00041042-001: Section 19(1) of the Organisation of Working Time Act, 1997 sets out an employee’s entitlement to annual leave:

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (Unless it is a leave year in which he or she changes employment)

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent, of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

This complaint relates to the non-payment of paid holiday and annual leave entitlement. The complainant had an annual leave entitlement of 24 days. At the hearing it was confirmed that he had carried over two days from 2019 and was due a further two days. The value of those days is €1,675.38. The respondent agrees that this is calculation is correct. I find that this complaint is well founded, and the complainant is entitled to a payment of €1,675.38.

CA-00041042-002: The Payment of Wages Act, 1991, defines “wages”

“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, and

(b) Any sum payable to the employee upon the termination by the employer of his contract of employment without his having given the employee the appropriate prior notice or the termination, being a sum paid in lieu of giving of such notice”.

The complainant did not receive any payment in lieu of the notice of the termination of his employment. The complainant understood that he was entitled to a months’ notice. The respondent confirmed that this was not correct and there was no such notice period in the complainant’s contract of employment. Based on his service history the complainant is entitled to one’s weeks’ notice which equates to €1,057.69. This complaint is well founded.

CA-00041042-003: The complainant did not receive his statutory minimum notice of termination of his employment. This matter has been addressed in CA-00041042-002.

CA-00041042-004: The complainant was not paid of expenses. He submitted the claim along with original receipts and personally left those in the respondent’s post box. The complainant provided copies of those receipts. The Payment of Wages Act, 1991, notes:

“Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) Any payment in respect of expenses incurred by the employee in carrying out his employment.”

At the hearing the respondent confirmed that the complainant was entitled to be reimbursed forthe expenses incurred. The complainant submitted receipts which totalled €1,739.96.

The respondent acknowledges that the complainant offered to offset some of the expenses he was due against a company laptop and company mobile phone. The respondent confirms that he accepted this offer, and he accepts that this left a balance of €964.96 due to the complainant for expenses.

The complainant is entitled to be reimbursed to the agreed amount of €964.96 and the complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00039398-001: I find that this complaint is well founded, and the complainant is entitled to a payment of €1,675.38.

CA-00039398-002: Based on his service history the complainant is entitled to one’s weeks’ notice which equates to €1,057.69. This complaint is well founded.

CA-00039398-003: The complainant did not receive his statutory minimum notice of termination of his employment. The complaint is well founded. This matter has been addressed in CA-00041042-002.

CA-00039398-004: The complainant is entitled to be reimbursed to the agreed amount of €964.96 and the complaint is well founded.

Dated: 14-07-2021

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Holiday pay. Notice period. Wages. Vouched expenses.