ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00028480
Parties:
| Complainant | Respondent |
Parties | Declan O'Neill | Brady Estates M.i.a.v.i Limited Dng Brady. (No Appearance) |
Representatives | Tadhg Boyle Rogers & Byron, Lars Asmussen BL |
|
Complaint(s):
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-00036589-002 | 09/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036589-003 | 09/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036589-004 | 09/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036589-005 | 09/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036589-006 | 09/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00036589-007 | 09/06/2020 |
Date of Adjudication Hearing: 06/09/2021
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant is seeking his redundancy payment, holiday pay, commission and wages due to him following his position being made redundant in February 2020. |
Summary of Complainant’s Case:
The Complainant, DON, commenced his employment with the Respondent, Brady Estates Limited on the 31st of July 2017. On the commencement of his employment he was given a letter setting out his job description and a statement of his terms and conditions of employment. DON was to be paid a gross basic annual salary of €32,000.00 and in addition to that, he was to be paid a Commission on sales reached over and above his target of €44,000.00 per annum, at a rate of 12% of the sales fee on properties which he was the lead negotiator, and 20% of the sales fees on properties which were acquired by him personally. DON was based in the Respondent’s office in Drogheda, County Louth. Up until the end of 2019 he was doing very well with the Respondent and DB seemed happy with his performance. However, by the end of the fiscal year 2019 things started to go downhill. The complainant noted various difficulties within the Respondent’s business and with their professional relationship. The complainant was invited to a meeting with DB in the Drogheda office. He was advised he should bring somebody with him. The complainant attended the office with his accountant PR. DB’s personal assistant was present also. At the meeting DB told the complainant that his position was being made redundant. This was the first time the Complainant had heard about the redundancy situation. DB confirmed that the complainant would, in addition to his statutory redundancy payment, would be paid his accurate annual leave entitlements. It was further agreed that the complainant’s commission calculations would be sent to PR and PR would liaise with MB the Respondent’s accountant. To date the Respondent has not discharged any of the sums due and owing to DON. The complainant is owed his statutory redundancy based on a commencement date of 31st July 2017 and an end date 24th of February 2020. His gross weekly salary €615.38. His redundancy payment amounts to €3,684.00. The complainant is entitled to 8 days annual leave amounting to €984.60 which he has not been paid for. The Complainant’s accountant also noticed that he had been underpaid for the year 2017, 2018 and 2019. Those figures amounted to €1,571.00 for the year 2017, €3,456.00 for the year 2018 and €3,456.00 for the year 2019. In relation to the Commission owed to the Complainant, he sought the information via a Data Access request, but the information has not been furnished to him. Based on the limited information the Complainant has to hand, he has calculated the Commission owed to him as of the 24th of February 2020 as €3,000.00 |
Summary of Respondent’s Case:
The Respondent did not attend for the hearing today. The Respondent did not attend either on the 26.05.2021 or on the 12.04.2021 when the matter was previously listed. DB applied for a postponement of today’s hearing. That was refused. He then e-mailed the WRC on the morning of the hearing stating: “Dear Sirs, We regret that the WRC has had to make the decision to proceed with the hearing today as scheduled. Our evidence would have been that Mr. O’Neill resigned from his position. At our last meeting Mr. O’Neill stated that he was unable to continue to work for DNG Brady under the terms and condition of his employment and he resigned. Therefore, this is not a redundancy issue.” Furthermore, the case officer spoke to DB on the morning of the hearing and gave him the option of attending via video link or phone call. The hearing did not commence until 11.45a.m. to allow DB time to log in. He did not attend. I am fully satisfied that the Respondent was on notice of the date and time of today’s hearing and was in possession of the log in details for the remote hearing. |
Findings and Conclusions:
CA 36589 -02. I am satisfied based on the uncontested evidence of DON that his position was made redundant on the 24.02.2021. The Respondent did not invoke any consultation process prior to making the decision to make the Complainant’s position redundant. I am further satisfied based on the documentary evidence produced for the hearing that he has not been paid his statutory redundancy payment and that he is entitled to same based on the following information: Commencement date: 31.07.2017 Termination date: 24.02.2020 Gross weekly salary: € 615.38 CA 36589- 03 The complainant withdrew this complaint. CA 36589 – 04 The complainant’s accountant, when reviewing the Complainant’s accounts, noticed that he had been underpaid for the years 2017, 2018 and 2019. He calculated the underpayments as follows: 2017 €1571.00 2018 € 3456.00 2019 € 3456.00 The complainant filed his complainant with the WRC on the 09.06.2020. S41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. S41 (8)An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The complainant filed his claim with the WRC on the 09.06.2020. The complainant was unaware of the underpayments until his accountant reviewed his accounts for the purpose of calculating his redundancy, holiday pay and commission payments. That was in February, 2020. Any underpayment made for the year 2019 should have been paid by the by the end of that year, 2019. As the statute only allows me to entertain a complaint made within six months from the date of the contravention, or twelve months if the complainant can show reasonable cause for the delay, I am satisfied that the complaints made in relation to the underpayments for 2017 and 2018 are statute barred. Based on the uncontested evidence of the complainant and the supporting documentation I am satisfied that I do have jurisdiction to entertain the complaint in relation to the underpayment of wages for the year 2019 and am satisfied that the complainant is entitled to a payment of €3,456.00. CA 36589 – 05 The complainant’s contract for employment clearly makes provision for a commission payment. It states that he is entitled to Commission on sales reached over and above his target of €44,000.00 per annum, at a rate of 12% of the sales fee on properties which he was the lead negotiator, and 20% of the sales fees on properties which were acquired by him personally. Section 1 Payment of Wages Act, 1991 defines wages as follows: “ wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— ( a) 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…. The complainant made a Data Access request in an attempt to get the figures he needed to accurately assess the data he needed to calculate his commission. That data was not forthcoming. He, based on the limited information he has, has calculated his commission at €3,000.00. I am satisfied based on the complainant’s uncontested evidence and the supporting documentation that the complainant is entitled to a payment of €3,000.00 CA 36589 – 06 The complainant has calculated that he is entitled to 8 days holidays “ “S19.— (1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to— ( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), ( b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or ( c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” I am satisfied based on the complainant’s uncontested evidence together with his supporting documentation that he is entitled to the eight days holidays amounting to € 984.00 CA 36589 -07 The complainant withdrew this complaint. |
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.
CA 36589-04 The complaint is relation to the 2019 underpayment is well founded. I award the complainant €3,465.00. The complaints in relation to the 2018 and 2017 underpayments are statute barred. CA 36589 – 05 The complaint is well founded. I award the complainant € €3,000.00 CA 36589 – 06 The complaint is well founded I award the complainant € 984.00 |
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA 36589 – 02 The complaint is well founded. I find that the complainant is entitled to a statutory redundancy payment. |
Dated: 8th September 2021
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
Redundancy, payment of wages, commission, holiday pay. |