ADJ-00029831

Complainant

Respondent

Parties

Damian  O'Donnell

Kippure Lodge Limited

Representatives

  self

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-00039428-001

28/08/2020

On the 31st of January 2020 the complainant is made redundant as the company is insolvent.

The complainant commenced employment with the company on the 1st of May 2013 in a Sales role and the business experienced difficult trading conditions over a number of years culminating in employees being made redundant without notice on the 31st of January 2020. The company also advises that it will attempt to implement a rescue plan.

The complainant states that he registered his complaint with Workplace Relations Commission on the 18th of August 2020, which is just over 6 months from the date of being made redundant.

The claimant alleges unlawful deduction of €31,185.

This figure is arrived at as follows:

1.       4 weeks minimum notice 4 x €833.25 (weekly pay) = €3333

2.       Wages unpaid for payslips dated 17th October 2019; 26th November 2019 and 14th of February 2020 amounting to total unpaid wages of €4818

3.       An earned unpaid bonus of €3000 for 2019.

4.       Hours worked over and above basic contractual hours since 2013 to 2019 amounting to a value of €20,034.

There was no show from the respondent employer.

The complainant relies upon misrepresentation as the cause for any delay in making his claim to the Workplace Relations Commission.

The Adjudicator wrote to the complainant on 13th of August 2021:

Further to your hearing today please provide the following:

1.            Contract of employment and start date.

2.            ROS confirmation of termination of employment

3.            Social Welfare Payment of Redundancy entitlement based on contract start date and termination date as per ROS

Please note I have referred you to section 41 of the Workplace Relations Act 2015 and time limit periods to make a claim. Please note that your claim was made to the WRC on the 28th of August 2020 and your employment ended on the 20th of February 2020-which is more than 6 months. This means that it appears that your claims are out of time.

You may seek independent legal advice from the Free Legal Advice Centre.

Please provide evidence to support any claim and please provide an explanation detailing a reasonable cause if a claim was not made within the 6-month time period, that should explain why the delay occurred and also contributed to or caused the delay.

You have until Friday 24th of September 2021 to finalise your claim, supported with documentary evidence as relevant and where out of time regarding the 6-month period to make a claim on any mater, including your claim for notice, you should provide reasons as set out why the delay occurred.

Over a number of years the employer who recently became insolvent made unlawful deductions which the complainant now seeks payment for under the Payment of Wages Act.

The employer failed to attend the hearing and I am satisfied that the complainant was notified of the date and time of the remote hearing having regard to the provisions as set out in the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI. No. 359/2020.

On the 31st of January 2020 the employer writes to the complainant that all full-time positions with the company have been made redundant as they were insolvent. The claims are made under the Payment of Wages Act 1991.

Section 41(8) of the Workplace Relations Commission states that:

(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.

In a letter dated the 17th of February 2020 the company writes to employees and states that a company called BKK would assist with completion of forms to enable you to make a claim for Redundancy, Arrears of Wages, Unpaid Statutory Minimum Notice to the Department of Employment Affairs and Social Protection. The claimant states that any delay in making a claim arose due to misrepresentations made by his employer; that all was in hand, and he would be assisted to make any claims to the relevant bodies, and he relied upon that representation.

In Regan Employment Law (Bloomsbury 2017) at paragraph 28.25:

In Alert One Security Ltd v Khan, 49 the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

If accepting that a misrepresentation occurred that caused or contributed to a delay in presenting the claim, time would begin to run from the date of the 17th of February 2020 and the 6 months limitation period would end on the 16th of September 2020.

On the 31st of January 2020 the employer writes to the complainant and states that they would advise you to sign onto social welfare and also apply for statutory redundancy entitlement of which I will confirm process going forward in coming days.

On the facts I don’t find that the employer misrepresented to the employee, they informed him that they were insolvent and had no cash to pay wages and that they would be examining a rescue plan over the coming weeks. It is true that the service company which the complainant was advised to contact did create an impression that a liquidator would be appointed, and this representation was made on several occasions and over several months. However, the General Manager of Kippure Estate Limited on the 22nd of April 2020 when asked by the complainant when he would be paid monies owed; in reply stated that he should contact Department of Social Welfare about his claim. Based on these facts the employee was advised to contact the department concerning his claim for unpaid wages.

The claim for unpaid wages dates back to 2013. The heads of claim for:

1.       An earned unpaid bonus of €3000 for 2019.

2.       Hours worked over and above basic contractual hours since 2013 to 2019 amounting to a value of €20,034.

are out of time, as time ran from the date of contravention and alleged unlawful deduction and not from the date of termination of the contract. As the complaint form was lodged with the Workplace Relations Commission in August 2020, they are significantly out of time. No reasonable cause has been provided relating to unlawful deductions that allegedly occurred in the second half of 2019. All other contraventions are statute barred based on the upper limit of 12 months to make a claim where there is reasonable cause.

However, the employee did not receive notice and based on his service; he states, and claims was due 4 weeks’ notice.

The claimant claims under payment for October 2019 and November 2019. He also claims underpayment for February 2020

The payslip provided as evidence for underpayment of wages is February 2020 and refers to period 2 and the pay date is 29th of February 2020. In the employee’s contract at section 6, it states that his salary will be paid monthly in arrears. The standard meaning of this term is that the employee is paid at the end of the month for the hours that they have worked during that month. In this case, the employee’s contract was terminated on the 31st of January 2020; therefore it would appear no hours were worked during the period claimed for, which is February 2020 and no under payment arises; although, notice does run through the month of February. I note also a payslip provided for period 1 and the Pay Date is 31st of January 2020 with nett payment of €2633.92.

In evidence the complainant provided a contract of employment which commenced on the 1st of March 2017; however, Revenue records show a start date of the 1st of January 2017 and for the purposes of calculating minimum notice, it is this date I have used.

His contract of employment states at section 12 that he is entitled to 1 months’ notice and the Payment of Wages Act states:

“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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

As the complainant is paid monthly in arrears and his contract specifies payment monthly in arrears, the date of contravention occurred on the 29th of February 2020 as this is the date that his monthly salary fell due for payment, and he had not received payment in lieu of notice at the date of dismissal. Based on this date of contravention his claim for notice is in time.

As he did not receive the appropriate prior notice of the termination of his contract as per section 12 of his contract of employment and he was entitled to 1 months’ notice, I determine that his claim for notice amounting to €3333 is well founded.

Section 6 of the Payment of Wages Act 1991 states:

1.       (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

I determine that the complaint is in part well founded as it relates to the failure of the employer to pay contractual notice of 1 month’s salary which amounts to €3333 and award this amount less statutory deductions.

The claim for €4818  regarding shortfalls in actual payment transferred to the complainants bank account; that were allegedly  properly payable and not paid are not well founded; as they are out of time relating to the alleged contravention shortfalls that occurred for October 2019 and November 2019 and in respect of February 2020 this appears to relate to notice having regard to the termination date in January 2020, which is well founded; however, it cannot be double counted as it is awarded under the head of contractual notice due and not paid.

The earned bonus of €3000 and not paid for 2019 is out of time and not well founded.

The claim for payment for worked time over and above contractual hours is not well founded as it is out of time as the claims date back to payments allegedly due from 2013 to 2019.

Contractual notice-Misrepresentation