Complainant

Respondent

Anonymised Parties

Accountant

Property Management

Representatives

self 

John Connellan, Carley & Connellan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00036404-001

29/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036456-005

29/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036457-005

29/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036458-005

29/05/2020

There are two claims relevant to this case as the other two pay ones were duplicate claims and were withdrawn by the Complainant.

CA-000364040-001:        Complaint for adjudication pursuant to Section 39 of the Redundancy Payment Acts 1967 – 2014

The Complainant stated he did not receive any redundancy payment.

CA-00036456-005:            Complaintfor adjudication pursuant Section 6 of the Payment of Wages Act, 1991

The Complainant stated he did not receive unpaid wages from week ending Sunday 19 May 2019 which is normally paid on a Friday. 

CA-00036404-001: The Complainant stated he was last permitted to work on 30 May 2019.  The work disappeared or moved from one office to another. Given the workload at the time and prior to the last week, the Complainant facilitated the Respondent by working double hours since 18 April 2019 which he did so mainly in his own home on account of the substantially higher number of hours required. The Complainant stated he was unable to access the Office on the Thursday, similarly the Monday before, as the code was changed. 

The Complainant stated prior to this he took ill and was ill for 8 weeks and despite being ill, noted that the Respondent sent emails about work. The Complainant Doctor’s certificates were sent the Respondent. The Complainant stated he gave notice on Monday 22 July 2019 that he wished to return to work on Friday 26 July 2019, email sent but the office was locked on the Friday and again on the Monday. The Complainant stated he wrote to the Respondent in this regard and the question of being suspended from work was not answered and he noted that the wages referred to in the email remained unpaid.

The Complainant stated a back to work meeting was delayed until Wednesday 4 September 2019. Another meeting was held on Tuesday 8 October 2019 and he explained very clearly that the stress overload was a result of unachievable goals and timelines having regard to work practice and training at the time. 

The Complainant stated that in his opinion the Respondent never wanted him back at work. The last he heard about a return to work was an email that was sent that stated, “We are in the process of preparing a report for Medwise and will revert once we have dates for your appointment”.  The Complainant stated he had to prompt action as the Respondent did not bother to arrange any appointment. Everything was dragged out. The Complainant stated that his Solicitor at the time wrote to the Respondent on Tuesday 12 November 2019 about breach of contract and the email was sent in the post additionally. The Complainant stated it had cost him a fortune both in legal expenses and time. The Complainant stated he believed the Respondent should have considered a “redundancy situation” from a far earlier time and the question must be asked as to why avoid the issue. 

The Complainant stated the Respondent wrote to him on Monday 23 December 2019 about redundancy options and according to his ex-Solicitor he received correspondence about this at the end of January 2020 but not from the usual Respondent’s Accountants and he urged the ex-Solicitor to proceed with extreme caution in any communication as the Respondent may record conversations. The Complainant stated the ex-Solicitor seemed to have received a “calculation” but for some reason matters seemed to have gotten shelved and he did not know why.

The Complainant stated the Respondent had not issued him with an RP50 and this was requested on Thursday 30 April 2019, the email was additionally sent in the post.  He stated the Respondent had just written and seemed to deny the calculation i.e. “You left at the end of May 2019 with no notice”. The Complainant stated he believed the Respondent did not seem to permit an employee to be ill and it was all so unrealistic.  He stated he found the Director to be doctor, solicitor, judge, jury and executioner during the back to work meetings and felt she was trying to break him down. He stated the job had now disappeared.

The Complainant stated it all started in December 2017 with the introduction of a new system, bit by bit the work was transferred to the D office and this climaxed in June 2018, but he was told circa 27 November 2017 by the Director that she didn’t want another person doing much bookkeeping and this could not be true.

He received a redundancy cheque from the Respondent, but it was cancelled by them and he did not cash it as he had not gotten the correct paperwork from them.

CA-00036456-005

The Complainant states that his employer did not pay him a payment that was due for week ending 19 May 2019.

CA-00036457-005

The Complainant states that his employer did not pay him a payment that was due for week ending 19 May 2019. This is a duplicate claim of CA-00036456-005 and was withdrawn at the hearing.

CA-00036458-005

The Complainant states that his employer did not pay him a payment that was due for week ending 19 May 2019. This is a duplicate claim of CA-00036456-005 and was withdrawn at the hearing.

CA-00036404-001: The Respondent stated that no redundancy occurred.  The Respondent summarised and stated that the Complainant maintained an entitlement to redundancy by reason of a change in employment or change in how the work was undertaken although same was not submitted in the format.

The Respondent stated it was common case that the last date of work was 31 May 2019.  The Respondent sought to engage with the Complainant on various dates after that point but the employee never worked after that date in May 2019. The Respondent stated that the Complainant engaged the services of a Solicitor on 12 November 2019.    The Respondent stated no complaint was made by the employee until May 2020. The Respondent stated the Complainant ceased to be an employee on payroll in June/July 2019. The Respondent stated no P45 or P60 was furnished as same were discontinued by the Revenue Commissioners on 1 January 2019. The Respondent stated the Complainant was an Accountant of 35 years standing and ought to have been aware of same through the Employee Detail Summary or Revenue.ie or ROS.ie. The Respondent stated it was submitted that Redundancy did not arise due to the Complainant not attending work. The Complainant ceased employment on 31 May 2019. This was disputed. The Respondent stated that the Complainant’s Solicitors letter dated 12 November 2019 said that the Complainant was being prevented from returning to work by the employer and that absent confirmation of same or the immediate return of the Complainant, proceedings would issue or a complaint would be made to the WRC.  No such complaint or proceedings were issued. The Respondent stated it was submitted that the Complainant ought to have brought any claim by end November 2019 being within 6 months of his date of work.  The Respondent alleged that the termination date was different to the date the Complainant alleged and therefore stated that Complainant brought a claim 12 months later and accordingly the Respondent stated it was submitted that the WRC lacked jurisdiction to hear the complaint as formulated as it was out of time. The Respondent stated in the letter that whilst the Complainant left in May 2019, they kept his job open until the end of the year to accommodate him, therefore, they calculated his employment end date to be 31 December 2019. The Respondent stated with regards to the Complainant’s comment about his long list of grievances, he went out sick on 31 May 2019 and that they had communicated via more than a dozen phone calls, text messages, emails and registered letters and that he never raised any grievances with them in all that time.

The Owner (Respondent) and Director of the Company i.e. a representative from the company who gave evidence confirmed there was significant issues with the employees performance which came to light and caused very serious issues for the company as a result.  She gave evidence stating that the 31 May 2019 was the last date the Complainant worked and he then went out on sick leave. The Witness stated that the Complainant advised the office was closed.  The Witness stated that the Complainant left with no notice other than a sick note which would follow and this came as a shock. The Witness stated the Complainant sick note was received to a person in the office and she asked for them to be sent to herself.  8 weeks later the Complainant wanted to return to work. The Witness stated that in the 8-week period there was huge work and stress to do work in his absence.  The Witness stated she was concerned so she had return to work meetings but the Complainant would not answer account system issues.  As an employer she wanted to be sure the Complainant was fit to return. The Witness stated the problems with the account system and procedures issues were highlighted to him.  The Complainant went out sick for 8 weeks and never returned in that interim period. The Witness confirmed she sent a letter of 7 July 2019 in response to an email from the Complainant.

The Witness stated that the Complainant said he would withdraw his claim if she resolved the issues in reference to pay. The Witness stated the letter was dated July 2019 in error it should have been August 2019.  The letter stated “We can now confirm your start date and whilst you left in May 2019, we kept your job open until the end of the year to accommodate you, therefore, we calculate your employment end date to be 31 December 2019”. The Witness stated she issued two cheques with the letter, one for holiday payroll and the second for redundancy. The payroll cheque for holidays was cashed but the redundancy amount had not been cashed. They realised also they overpaid the employee in the holiday calculation cheque they gave him.  The Witness stated she felt under threat to give the Complainant this letter and payments. The Witness confirmed that the cheque had since been stopped in the end of September/early October 2020. It was stopped when she realised the WRC claim was continuing. The employee cashed the second cheque but did not cash the redundancy cheque.

 CA-00036456-005

The Respondent stated that the Complainant processed his own payroll.

CA-00036457-005 This claim was withdrawn as it was a duplicate claim.

CA-00036458-005 This claim was withdrawn as it was a duplicate claim.

CA-00036404-001

The Applicable Law

Section 7(1) of the Act outlines the general right to redundancy pay. It states: -

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or, had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. Redundancy payment is tax free.  A complainant must be able to show a minimum two years (104 weeks) of service in the employment.  Responsibility to pay Statutory Redundancy rests with the Employer. 

The evidence presented

The Complainant stated his case.  The Complainant had no opportunity to return to work. The Complainant stated the Respondent suggested redundancy and he didn’t know why it didn’t exist now. The Complainant stated he did not get formal notice of his redundancy; he received a redundancy cheque but it had been stopped since.

The Respondent stated that the Complainant would not confirm when he felt his employment ended.  The Respondent stated that the Complainant advised they tried to engage with him and paid him redundancy under duress. The Respondent also paid him an extra amount of holiday pay in error. The Respondent stated that issues occurred in the Complainant’s employment prior to this and therefore stated that this redundancy claim was without merit.

The Complainant stated had he received no written notice of his redundancy and was unsure of his date of redundancy.  He did not know during 2019 what was the status of his employment. He was the only one who worked from the Office and after he returned from sick leave he could not return to work from the Summer of 2019.  He could not access the office from that date. The Complainant was unsure of the Redundancy date as he didn’t get the date or statement of redundancy. 

The Complainant was responsible for payroll processing when he was at work.  He processed wages in May 2019 for June 2019 before he became ill. The Complainant notified the Respondent on 22 July that he wanted to return to work on 26 July but he could not access the office on 26 July and the following Monday. The Complainant contacted the Solicitor on his behalf and they sent a letter on his behalf to protect his employment. He also advised the Solicitor with reference to a back to work meeting regarding his return to work. The Solicitor sent a letter on the Complainant’s behalf to the Respondent on 12 November 2019. The Complainant stated he did not know what was happening and if he was suspended. The Respondent stated that the Solicitor’s letter stated the Complainant wanted to recommence work or he would request redress from WRC.

The Respondent’s Witness stated that the Complainant said he would withdraw his claim if she resolved the issues in reference to pay. The Witness stated the letter was dated July 2019 in error it should have been August 2019.  The letter stated “We can now confirm your start date and whilst you left in May 2019, we kept your job open until the end of the year to accommodate you, therefore, we calculate your employment end date to be 31 December 2019”. The Witness stated she issued two cheques with the letter, one for holiday payroll and the second for redundancy. The payroll cheque for holidays was cashed but the redundancy amount had not been cashed. They realised also they overpaid the employee in the holiday calculation cheque they gave him.  The Witness stated she felt under threat to give the Complainant this letter and payments. The Witness confirmed that the cheque had since been stopped in the end of September/early October. It was stopped when she realised the WRC claim was continuing. The employee cashed the second cheque but did not cash the redundancy cheque.

I have carefully considered the evidence adduced over the course of the virtual hearing including the submissions, correspondence and oral evidence and I find that a redundancy occurred.  The company confirmed in their own correspondence that the termination date for this employee was 31st December 2019 and I accept that is the correct termination date relevant to this claim. Therefore, the employee’s claim to the WRC is within date to be heard for adjudication.  The way the Company handled the matter was not fair or in keeping with the employee’s legal requirements in line with the legislation.

In the circumstances of this case and based on the evidence before me the Complainants period of employment with Company was from the 9 March 2006 to 31st December 2019 therefore, I find that the Complainants redundancy should be calculated for that period.

CA-00036456-005/CA-00036457-005/ CA-00036458-005

The issue of the timeliness of the submission of this claim to be within the timeline outlined in the legislation is at the crux of the matter.

Section 6(4) of the Payment Of Wages Act, 1991

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.

The Complainant stated his claim was not outside the time limit as he was unwell and the meetings in relation to his return were not appropriate. The Complainant stated he had been through a very traumatic time in 2019 so felt he should get an extension of time. Based on the above payment was not made week ending Sunday 19 May 2019. The WRC claim form states the complaint in respect to payment of wages was submitted on 29 May 2020. This is outside the time permitted by the legislation and the extension of up to 12 months permitted.

The Adjudicator is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit and as the Complainant’s claim was not presented to the Workplace Relations Commission until 29 May 2020 it is outside of the statutory time limit; therefore, the claim fails.

CA-00036404-001

Section 39 of the Redundancy Payments Acts requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I find the claim is well founded based on the evidence provided.

Based on the evidence before me I am satisfied that the complainant was in employment with the Respondent and his employment was terminated by the Respondent on 31 December 2019 by reason of redundancy. It is an unfortunate that the Complainant has had to wait so long to receive his Statutory entitlements.

I accept that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts and the claim is well-founded. The Complainant’s role no longer existed. The date of redundancy and termination I find is 31 December 2019 per Respondent letter of 7 July 2020.  I find that Complainant is entitled to a redundancy payment and any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966 and their redundancy is based on the following criteria:

Date of Commencement:     9 March 2006

Date of Termination:             31 December 2019

Gross Weekly Pay:                  €351 gross per week

CA-00036456-005

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. For all the reasons set out above, I find that the complaint under the Act is outside the statutory time limits and therefore must fail.

CA-00036457-005

This claim was withdrawn as it was a duplicate claim.

CA-00036458-005

This is a duplicate claim and was withdrawn at the hearing.