ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029682
Parties:
| Complainant | Respondent |
Parties | Seyda Tekin | EMI Restaurants Limited, in Liquidation |
Representatives | Not represented | Did not attend the hearing |
Complaints:
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-00039243-001 Early draft of the complaint below | 19/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039245-001
| 19/08/2020 |
Date of Adjudication Hearing: 10/06/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on August 19th 2020 and, in accordance with section 41 of the Workplace Relations Act 2015, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid 19 pandemic, a hearing was delayed until June 10th 2021. On that date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant was not represented; however, she was accompanied at the hearing by three of her former colleagues. The respondent is a company in liquidation and the liquidator is Mr David Kennedy, Financial Consultant. Mr Kennedy was in correspondence with the WRC in advance of the hearing of this complaint, but he did not attend and he did not send a representative. I have therefore reached the conclusions set out below solely on the evidence of the complainant.
At the opening of the hearing, I explained to the complainant that there had been some changes to how adjudication hearings take place, following the judgement of the Supreme Court in the case of Zalewski v Adjudication Officer and WRC [2021] IESC 24 which was delivered on 6th April, 2021 with a further ruling on 15th April 2021. I informed her that, from April 6th 2021, hearings at the WRC may be held in public and that it is likely that the parties will be named in the published decisions. I also informed her that evidence may be heard under oath and that existing legislation will be amended to provide for prosecution for the giving of false evidence. The complainant was willing to proceed in these circumstances.
The complainant submitted a complaint to the WRC on August 19th 2020 at 16.05. At 16.15, she submitted the complaint form again, with a small amendment. It is apparent that the complainant has submitted just one complaint, and that the form she submitted at 16.05 (CA-00039243) was an early draft. No decision will be issued in respect of this complaint and this decision is in response to CA-00039245-001.
Background:
The complainant worked as a waitress in the respondent’s restaurant in central Dublin from September 14th 2019 until March 16th 2020, a period of 26 weeks and two days. The restaurant closed due to the Covid 19 pandemic and has not re-opened. This is a complaint about the non-payment of wages, holiday pay, public holiday pay, a Sunday allowance and pay in lieu of notice. |
Summary of Complainant’s Case:
The complainant said that she worked between 30 and 35 hours each week and she was on the minimum wage, which, for the first 20 weeks of her employment, was €9.80 per hour and, from February 1st 2020, was €10.10 per hour. She said that her last day at work was March 16th 2020. She said that she received a payslip for her last week of work but she didn’t receive any wages. She also said that she worked a “back week” for the first week of her employment in September 2019 and that she didn’t get paid for this when her employment was terminated. She took no holidays during the 26 weeks that she worked for the respondent and she got no holiday pay. She got no allowance for working on the public holiday on Monday, October 28th or on Christmas Day. She said that she worked on around half of the Sundays, but received her normal pay. She got no notice of the termination of her employment and she was not paid in lieu of notice. Following the closure of the restaurant, the complainant said that she contacted the owner several times but that her calls weren’t answered. On January 18th 2021, more than 10 months after the restaurant closed, the complainant received an email from the liquidator with a form to complete regarding an application to the Department of Social Protection under the Insolvency Payments Scheme. The complainant sent the completed forms back to the liquidator by post, but did not receive any payments until the day before this hearing when €900 was transferred to her bank account. She did not receive any correspondence regarding the payment, she has no breakdown of what the money relates to and she is unsure if she has received the wages to which she is entitled. |
Summary of Respondent’s Case:
Neither the liquidator or the respondent attended the hearing. On June 2nd 2021, the restaurant owner sent an email to the WRC in which she said that the company went into liquidation in 2020 and that forms were sent to the staff for them to fill out the details of monies owed to them. On June 8th 2021, the owner wrote to say that “all staff received monies due to them from dept social welfare (sic).” The owner said that she would not attend the hearing on June 10th and she was informed that the hearing would proceed in her absence. On the morning of the hearing on June 10th 2021, the liquidator, Mr Kennedy, wrote to the WRC as follows: “Hello, I am the liquidator to this company. This employee’s claim has been paid by the department of social protection and the payment has been made to the employee. This should allow the claim to be withdrawn. Kind Regards, David” Mr Kennedy was informed by return e-mail that a complaint can only be withdrawn by a complainant. |
Findings and Conclusions:
The complainant’s last day at work was March 16th 2020 and she made strenuous efforts in the months that followed to contact her employer and to get the wages that she was due. When she got no satisfaction, on August 19th 2020, she submitted this complaint to the WRC. On January 18th 2021, a person from the liquidator’s office sent the complainant a letter and forms to complete. As the complainant is a foreign national, and someone whose first language is not English, it must have been obvious to the liquidator that the letter would be almost impossible for the complainant to understand. It was written in very legal terms, and, although intended for a female employee, it was addressed, “Dear Sirs…” It is regrettable that the liquidator did not contact the complainant by telephone and explain the process of applying to the Insolvency Scheme. If this had occurred, the complainant may not have had to go through the unnecessary inconvenience of attending a hearing at the WRC. The coincidence in which a payment of €900 was lodged to the complainant’s bank account the day before the hearing leads me to question how long this money from the Department of Social Protection was sitting in the liquidator’s account and why the wages which are due to the complainant were not paid to her before then. Having considered the complainant’s evidence that she worked between 30 and 35 hours each week, I find that she is entitled to wages not paid to her based on the following: The first week of her employment: 32.5 hours @ €9.80 = €318.5 The final week of her employment: 32.5 hours @ €10.10 = €328.25 Pay in lieu of working on two public holidays: 13 hours @ €10.10 = €131.30 Holidays at 8% of 858 hours from 14/09/2019 to 16/03/2020: 68.5 hours @ €10.10 = €693.26 Allowance of 33% for working on 13 Sundays for 6.5 hours: 84.5 hours @ €3.33 = €281.39 One week’s pay in lieu of notice: €328.25 Total wages not paid: €2,080.95 |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I decide that this complaint is well founded. I find that, at the termination of her employment, the complainant was entitled to wages, holiday pay, public holiday pay, a Sunday allowance and pay in lieu of notice, amounting to unpaid wages of €2,080.95. At the hearing, the complainant said that the day before this hearing, she received a payment of €900 from the liquidator. In accordance with section 6 of the Payment of Wages Act, as amended, I am required to direct the respondent to pay compensation as a net amount. As the complainant was on the minimum wage, the only deductions from her wages would have been a small amount for USC. I decide therefore, that the respondent is to pay the complainant a further amount of €1,000. |
Dated: 23rd June 2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Unpaid wages, holiday pay, public holiday pay, Sunday allowance, pay in lieu of notice |