ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029709
Parties:
| Complainant | Respondent |
Parties | Maria De Los Angeles Puente | EMI Restaurants Limited, in Liquidation |
Representatives | Not represented | Did not attend the hearing |
Complaint:
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-00039316-001 | 23/08/2020 |
Date of Adjudication Hearing: 10/06/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on August 23rd 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.
Background:
The complainant worked as a waitress in the respondent’s restaurant in central Dublin from September 11th 2019 until March 16th 2020, a period of 26 weeks and five 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 35 and 40 hours each week and she was on the minimum wage, which, for the first 21 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 her 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 27 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 nearly every Sunday, 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. |
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 employees claim has been paid by the Department of Social Protection under the Insolvency Payments Scheme. However as the employee failed to provide her bank details on the IP1 form we have been unable to make the payment to the employee. We have written to the employee requesting details of her bank account but have not yet received a response. Can you ask the employee for her bank details (name and IBAN) and we can transfer payment. This should allow the complaint to be withdrawn. Kind Regards, David” Mr Kennedy was informed by the case officer 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 to get the wages that she was due. When she got no satisfaction, on August 23rd 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. It is a worrying coincidence that, on the day before this hearing, the liquidator wrote to the WRC to say that, because the complainant had not provided her bank account number on the Insolvency Scheme form, she had not been paid the wages she was due. A question arises about how long this money from the Department of Social Protection has been sitting in the liquidator’s account. The complainant’s email address is on the form and she could easily have been contacted and asked to provide her bank account number. Having considered the complainant’s evidence that she worked between 35 and 40 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: 37.5 hours @ €9.80 = €367.50 The final week of her employment: 37.5 hours @ €10.10 = €378.75 Pay in lieu of working on two public holidays: 12 hours @ €10.10 = €121.20 Holidays at 8% of 1012 hours from 11/09/2019 to 16/03/2020: 81 hours @ €10.10 = €818.10 Allowance of 33% for working on 20 Sundays for 7.5 hours: 150 hours @ €3.33 = €499.50 One week’s pay in lieu of notice: €378.75 Total wages not paid: €2,563.80 |
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, amount to unpaid wages of €2,563.80. 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 she 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 €2,400. |
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 |