ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028207
Parties:
| Complainant | Respondent |
Anonymised Parties | Dental Receptioist | A Paediatric Dental Practise |
Representatives | none | Rory Treanor Peninsula Group Limited |
Complaints:
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-00035808-001 | 23/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035808-002 | 23/04/2020 |
Date of Adjudication Hearing: 29/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
“Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
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 any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.
The Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973. Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 23rd of April 2020 was submitted within the time allowed.
Background:
The Complainant’s employment was terminated in March of 2020. The Complainant was entitled to one week of Statutory notice and four weeks of notice was provided for under his Contract of employment. The Complainant was laid off in response to the coronavirus pandemic at the same time that he was notified of the dismissal. |
Summary of Complainant’s Case:
The Complainant is claiming he was entitled to be paid his Contractual and/or statutory notice in full following his dismissal. He gave evidence of his time in the employment with the Respondent and leading up to the end of the employment relationship. |
Summary of Respondent’s Case:
The Respondent provided me with a submission and I additionally heard form a key witness Dr.DR |
Findings and Conclusions:
I have carefully considered the oral evidence adduced in the course of this hearing together with the comprehensive submission put up by the Employer. The complainant herein commenced his employment on the 29th of August 2019. A Contract of employment was provided, and the Complainant’s salary, terms and conditions of employment were all known to him. The Complainant gave his own evidence. In March of 2020 the Complainant was called into a meeting with the Dentist DR who indicated that there was a likelihood of a lay off in the following week. The Complainant indicated that he and DR had not been getting along well and that there had been probationary issues which involved an extension of his probation period. The Complainant emailed DR asking what the situation would be on his return to the workplace. The Complainant was then surprised to be told on the following day (March 19th) that DR was in fact moving to terminate the employment altogether and that the workplace was closing down in immediate response to the Coronavirus pandemic. It is noted that the complainant was in the workplace for less than 52 weeks. The Complainant had to deliver his keys up then and there. The Respondent wrote a letter to the Complainant dated the 27th of March 2020 confirming that the Dismissal had been effected by reason of the conduct of the Complainant and outlined the various issues which had arisen in the course of the employment. The Complainant refutes these, but the matter of dismissal rested there. The parties agree that the Contract of employment allows for a four week Notice period which would have brought this employment up to the 15th of April 2020. The Respondent makes the case that the Complainant was put on lay off for the four weeks in response to the pandemic and that the complainant was therefore entitled to the pandemic unemployment payment for that specific four weeks and he was not entitled to a further payment from the Respondent company. The Complainant believes he should have received his salary in the ordinary way. He says he could have continued to work remotely or he should have been paid in lieu of working out the Contractual period of Notice. I do not find merit in the Complainant’s argument that he should have been allowed to work out his Notice period at the considerably higher salary payment per his Contract and that there was work there for him to do to justify this. It is commonly known that dental practises were forced to close their doors by reason of the nature of the work they perform and the very high risk of transmission. The fact that the Complainant was on a period of Notice is not particularly relevant. He, along with countless thousands of others, were denied the possibility of earning their Contractual remuneration by reason of a Government intervention which allowed Employers put their workforce into a state of lay off pending the eradication of the virus. I have to accept the Respondent’s argument that the only payment to which the Complainant was entitled in the course of his period of lay off was the emergency pandemic payment he got in consequence of his abrupt lay off. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00035808-001 This complaint is not well founded and no deduction was made. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00035808-002 This complaint is not well founded, and the Complainant is not entitled to any further payment in lieu. |
Dated: 15th June 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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