ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029737
Parties:
| Complainant | Respondent |
Parties | Yasin Saricam | 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-00039242-001 | 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 and he attended on his own. 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 him 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 him 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 kitchen porter in the respondent’s restaurant in central Dublin from January 13th 2020 until March 17th 2020, a period of nine 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 worked between 35 and 40 hours each week and he was on the minimum wage, which, for the first two weeks of his employment, was €9.80 per hour and, from February 1st 2020, was €10.10 per hour. He said that his last day at work was March 17th 2020, when he worked for five hours. He said that he received a payslip for his last week of work but he didn’t receive his wages. He also said that he worked a “back week” for the first week of his employment in January 2020 and that he didn’t get paid for this when his employment was terminated. He took no holidays during the nine weeks that he worked for the respondent and he got no holiday pay. He got no public holiday allowance for working on Saint Patrick’s Day. He said that he worked on around half of the Sundays, but he received his normal pay. He got no notice of the termination of his employment and he was not paid in lieu of notice. Following the closure of the restaurant, the complainant said that he contacted the owner several times but that his calls weren’t answered and, eventually, his number was blocked. The complainant provided documents to me at the hearing which show that on January 18th 2021, more than 10 months after the restaurant closed, he 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 documents show that the complainant sent the completed forms back to the liquidator the following day, January 19th 2021. On January 26th, January 29th and March 2nd, the complainant sent emails to the liquidator looking for an update on his claim; however, there is no evidence that he received a reply. At the hearing, the complainant said that yesterday, June 9th 2021, €672 was transferred to his bank account. He did not receive a breakdown of what this payment relates to and he is unsure if he has received the wages to which he 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. She said, “I can only assume that they all got it.” 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. 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 email that a complaint can only be withdrawn by a complainant. |
Findings and Conclusions:
The complainant’s last day at work was March 17th 2020 and he made strenuous efforts in the months that followed to contact his employer to get the wages he was due. When he got no satisfaction, on August 19th 2020, he 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 him to understand. It was written in very legal terms, and, although intended for the employees, 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 €672 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 him were not paid before then day. Having considered the complainant’s evidence that he worked between 35 and 40 hours each week, I find that he is entitled to wages not paid based on the following: The first week of his employment: 37.5 hours @ €9.80 = €367.50 The final week of his employment: 37.5 hours @ €10.10 = €378.75 Pay in lieu of working on Saint Patrick’s Day: 7.5 hours @ €10.10 = €75.75 Holidays at 8% of 352.5 hours worked from 13/01/2020 to 17/03/2020: 28 hours @ €10.10 = €285.00 Allowance of 33% for working on five Sundays for 7.5 hours: 37.5 hours @ €3.33 = €124.88 Total wages not paid: €1,231.88 The complainant is not entitled to pay in lieu of notice, because he did not work for his former employer for more than 13 weeks. |
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 his employment, the complainant was entitled to wages, holiday pay, public holiday pay and a Sunday allowance, amounting to unpaid wages of €1,213.88. At the hearing, the complainant said that the day before this hearing, he received a payment of €672 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 his wages would have been a small amount for USC. I decide therefore, that the respondent is to pay the complainant a further amount of €500.00. |
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 |