Complainant

Respondent

Parties

John Healy

Ashgrove Interparts Limited

Representatives

Michael Nugent, Nugent and Co. Solicitors

Andrew Whelan BL, instructed by  Collins Crowley Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040593-001

23/10/2020

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

CA-00040593-002

23/10/2020

The complainant seeks to be paid his wages for the period he was on lay-off due to the Covid-19 pandemic. He asserts that he is entitled to these wages and that their non-payment is an unlawful deduction and a contravention of the Payment of Wages Act. The respondent outlines that the complainant was not entitled to be paid as he was on lay-off. There is also a Terms of Employment (Information) Act claim.

The complainant commenced employment on the 9th June 2004 and was employed until the 12th January 2021 when he was made redundant. The complainant outlined that he had not been paid his wages from the 5th June 2020 and submitted that he was entitled to his wages. The complainant outlined that it appeared that the respondent had accepted the Terms of Employment (Information) claim. A contract was furnished in September 2020 as set out in the email of the 16th September 2020.

Commenting on the letter of the 12th June 2020, the complainant pointed to the reference to ‘if’ he was required to return to work. The letter had referred to a phone call, which took place in or around the 2nd June 2020. It was during this phone call that the complainant was told that he was gone. He received notification of his dismissal on the 12th January 2021.

Referring to Hanna v FSU PWD202, the complainant outlined that as the respondent has not disclosed the basis for the deduction, the Payment of Wages complaint should succeed. It was submitted that there was no contractual or statutory basis for the deductions.

The complainant outlined that he had worked as a delivery driver for the respondent since 2004 and it supplied car parts. He had been full-time, earning €23,400 for a 40-hour week. The respondent was taken over in April 2019 and the complainant was told that he would lose his job if he did not accept reduced hours. His working hours were then reduced to two days per week.

On the 27th March 2020, the complainant was told to stay at home and was paid. The complainant did not know whether the respondent had availed of a wage subsidy scheme. The respondent had been designated an essential service and continued in business throughout the Covid-19 pandemic. The complainant believed that everyone else had returned to work by June 2020, including a named delivery driver.

The complainant outlined that while the respondent referred to following fair procedures, he had not received them. The complainant stated that he received a payment on the 12th June 2020 which was his full annual leave for the year and 8 days of TOIL. This was the last payment he received from the respondent, other than the four weeks of notice pay and an ex-gratia payment.

In closing, the complainant outlined that his prospects were worse at the time of his dismissal in January 2021 as there was another lockdown. It was submitted that it had been established that there was no written contract. The complainant stated that his dismissal was wholly or mainly due to the diminishing requirements of the business, i.e. within the definition at section 7(2) of the Redundancy Payments Act. In respect of the Payment of Wages, the issue was whether the period of lay-off justified the non-payment of wages.

White J in Lawe v Irish Country Meats [1998] ELR 266 held that there was no general right to lay off without pay. It referred to the definition of lay off in the Redundancy Payments Act. The court held that the lay-off was not valid as it had not been instigated in compliance with section 11 of the Redundancy Payments Act. In Petkevicius v Goode Concrete [2014] IEHC 66, Kearns J held that the right to lay an employee off without pay requires a clear basis in custom and practice.

In submissions, the complainant outlined that he had been made redundant. It was submitted that the respondent did not have the right to put him on lay-off and he had not consented to the deduction in wages. It referred to information published by the Citizens Information Centre and IBEC stating that consent was required for unpaid lay-off, unless expressly provided for.

In replying submissions to the respondent’s post-hearing correspondence, the complainant outlined that he had not seen the pay slips dated after the 27th March 2020. He stated that the pay slips differed in format from the pay slips he previously received. He stated that he had not received the amount stated in the pay slip of the 12th June 2020.

The complainant replied to the respondent’s post-hearing legal submissions as follows. It submitted that no statement of terms had been provided to the complainant and the document later advanced did not reflect the terms of his employment. The complainant outlined that the respondent had stated in evidence that the last amount paid to the complainant was on the 5th June 2020. The respondent had also stated that the last wages were paid on the 27th March 2020, so a higher amount of wages were due (€7,482.86 in wages and €599.04).

The complainant submitted that it was for the employer to justify the non-payment of wages. Relying on Lawe v Irish Country Meats, Bond v CAV [1983] IRLR 360 and Devonald and Rosser, it submitted that there is no right for lay-off without pay except in very limited circumstances. It referred also to the WRC decisions in ADJ-000023701 and ADJ-000023761. It submitted that there was no evidence of a custom or practice which permitted lay-off without pay.

In respect of Lawe v Irish Country Meats, the complainant submitted that there were very limited circumstances where lay-off without pay was permitted, including where it was provided for in a contract and where there was an established custom and practice of unpaid lay-off. Applying Devonald and Rosser, it was submitted that a practice had to be so ‘notorious’ and ‘so universal’ that no worker would have entered into service without looking at it as part of the contract of employment. The Citizen Information Centre and IBEC documentation did not mention any new custom or practice arising from the pandemic. The complainant distinguished Petkevicius v Goode Concrete as there had been a contractual provision allowing for lay-off and there was a custom and practice of unpaid lay-off in the construction industry.

The complainant cites paragraph 15.22 of Murphy and Regan: ‘At common law there is no general right for an employer to lay off an employee without pay but there are limited circumstances where such a right applies. The right to invoke lay off has been codified in section 11 of the Redundancy Payments Acts 1967 – 2014.’ It submitted that the EAT cases relied on by the respondent (and cited in Murphy and Regan) arose in construction and fruit picking, where there are regular lay-offs. This differed from other industries including the one worked in by the complainant.

Commenting on the Chmiel decision, the complainant said that this referred to there being an agreement between the parties that lay-off would not be paid and there was no such agreement in this case.

The complainant outlined that the respondent had not complied with section 11 of the Redundancy Payments Act as there was no notice prior to the cessation of employment. It said that the evidence at the hearing was that the first notice was given on the 12th June 2020 when the complainant was already on lay-off. The letter of the 12th June 2020 did not state that the lay-off ‘will not be permanent’ as required by section 11 but referred to ‘if you are required to resume work’. It submitted that this indicated that the respondent intended the lay-off to be permanent, as did the phone call of the 2nd June 2020 and its refusal to disclose the ‘fair procedures’ it relied on in the lay-off. The respondent did not believe that the lay-off was temporary, as required by an employer relying on section 11.

The complainant pointed to WRC adjudication decisions issued during the pandemic. In ADJ-00028414, the adjudication officer found that the wages were payable as there was no contractual provision allowing for the deduction and the employee had not consented to it. He further relied on ADJ-00029301, ADJ-00028317 and ADJ-00028929, in particular the continued need for fair procedures.

In respect of any financial impact on the respondent caused by the pandemic, the complainant pointed to his wages being €180 per week and that it remained open throughout the pandemic and deemed an essential service. It submitted that the respondent had not provided an explanation why it did not avail of Government subsidies in respect of the complainant. The TWSS scheme would have covered all the complainant’s wages until the 4th May 2020 and 85% of his salary until 30th August 2020. Further supports would have been available through the EWSS.

In respect of the redundancy complaint, the complainant pointed to the evidence adduced at the hearing where the respondent stated that the complainant’s employment ended because of the pandemic.

The respondent outlined that it bore no ill will to the complainant. He had been laid off in March 2020 and the company decided to terminate his employment inJanuary 2021. It submitted that no wages were due as the complainant was on lay-off and could not claim redundancy because of the insertion of section 12A to the Redundancy Payments Act.

The respondent outlined that the complainant was TUPEd into the company on a five-day a week contract. It outlined that the complainant asked to then work one day per week, which it did not accede to. The respondent agreed to the complainant working two days per week. The respondent provided contracts of employment to the complainant, and this was a full-time contract. It outlined that it relied on the document of the 12th August and acknowledged that there was no signed contract.

The respondent outlined that it was a ‘relevant business’ under SI 206/2020 and was, therefore, permitted to operate during the lockdown. All staff were then placed on lay-off. The Government public health advice was that the complainant should cocoon because of his age. The respondent denied that the complainant had been made redundant. It submitted that Hanna v FSU PWD202 did not apply as the complainant was not working and so, no deduction was made.

The respondent said that the complainant was paid his accrued annual leave and had not availed of the Pandemic Unemployment Payment.

Evidence of the accounts director

The accounts director outlined that the respondent was acquired in 2018. In 2019, the complainant had asked to reduce his hours and they reached a compromise of two days per week. No-one had contracts so the respondent provided the one-page document. This stated that the complainant worked full-time hours.

The accounts director outlined that all staff were laid off on the 27th March 2020. The complainant informed them that he was not entitled to the PUP, so he was paid 22 days of annual leave instead of the 14 he was entitled to. She called the complainant in June 2020 to say that the complainant had to be placed on lay-off without pay. She outlined that the letter of the 12th June 2020 was a standard letter sent to all employees. The complainant remained on lay off and the respondent brought back employees to meet business demands.

The accounts director said that on the 12th January 2021 the complainant’s employment ended by way of a no-fault termination. She outlined that their working relationship had come to a natural end as a result of the global pandemic. She said that the complainant was not made redundant and there were no redundancies at the respondent.

In cross-examination, the accounts director said that contracts were prepared for all employees. It had been a matter of sitting down with all employees and of going through the document with them. There was no such meeting with the complainant, and he only worked two days per week. The accounts director said that while a contract was issued for the complainant, it was not handed to him and there was no meeting with him.

The accounts director was asked whether there was a letter that described the pay paid in March 2020 as being the payment of annual leave; she replied that there was no such letter. She outlined that the complainant had contacted their pay roll operator to explain that he was not entitled to PUP and the respondent then agreed to make the payment. On the 12th June 2020, the accounts director informed the complainant that it could no longer accommodate the complainant as there was no more annual leave to pay.

The respondent outlined that the complainant was never told that his employment was gone. The June letter that used the word ‘if’ was sent to all staff. The respondent was making every attempt to get people back to work. The respondent availed of the Government supports but was not sure if this was in respect of the complainant. The respondent had approved annual leave to be paid to the complainant instead.

The respondent outlined that the intention was to bring the complainant back to work. The employment relationship came to a conclusion because of the pandemic. The respondent accepted that there were three letters sent to the complainant: June and August 2020 and January 2021. It was put to the respondent that the 12th January letter corresponded with the latest lockdown even though the respondent was exempt from having to lock down. The respondent replied that there were still staff on lay-off at this time.

The respondent was asked whether there was work for the complainant in January 2021; she replied that had there been work, the complainant would have been brought back. This was not a rushed decision.

In closing, the respondent stated that no inference could be drawn from the date of letters and the date Regulations came into force regarding Covid-19 restrictions. In submissions, the respondent outlined that the complainant’s employment was terminated with notice, and he received an additional ex gratia payment of four weeks. It was submitted that the complainant was not made redundant and none of the grounds in section 7(2) of the Redundancy Payments Act applied in this case. The respondent submitted that there was no unlawful deductions of wages and no contravention of the Payment of Wages Act. It submitted that wages were not due as the complainant was on lay-off and the lay-off was because of the Covid-19 pandemic. It paid the complainant accrued annual leave until June 2020 as it was aware that the complainant was not entitled to PUP.

In post-hearing correspondence, the respondent confirmed that at no time had it availed of either the TWSS or EWSS in respect of the complainant. It submits 12 pay slips, covering 27th March to the 12th June 2020 and which state that the total pay for each period is €180.

The respondent made post-hearing submissions in respect of the payment of wages during lay-off. In respect of Lawe v Irish Country Meats [1998] ELR 266, the respondent submitted that this was an authority at common law and needed to be tested against the reason for lay-off in this case, i.e. the pandemic. The respondent outlined that the insertion of section 12A of the Redundancy Payments Act was a complicating factor. It outlined that the Government had established the PUP scheme for people on lay-off who could not now claim redundancy. The respondent outlined that the complainant had applied for the PUP and was looking to the respondent as a social insurer of last resort. The respondent referred to Chmiel v Concast Precast PW725/2012 and A Production Operative v A Manufacturing Company ADJ-00023701.

The respondent said that central to whether there was a right to paid lay-off was the applicable custom and practice. It relied on para 15.23 of Murphy and Regan: “Whether pay is due during a period of lay-off has been the subject of several recent EAT cases. The EAT cited the fact that there is a reasonable, certain and notorious custom and practice that lay-off in Ireland is without pay since the coming into force of the 1967 Act. In all the recent EAT cases the EAT found that the general custom and practice that temporary lay-off (duly notified under the Redundancy Payments Act 1967 – 2014) is generally, by notorious custom and practice unpaid.’

The respondent submitted that custom and practice in March 2020 was that employers put employees on long term lay-off without pay. Relying on Petkeviciusv Goode Concrete (In receivership) [2014] IEHC 66, the respondent contended that the entire work environment was in freefall as a result of the pandemic. It cited paras 42 and 43 of Petkeviciusv Goode Concrete (In receivership), whereby the court held:

‘42. There is no right to lay-off with pay. It is well-established that layoff without pay may occur where it can be established that this is the custom and practice of the trade. This custom must be reasonable, certain notorious; Jel[f] J Devonald and Rosser (1906) 2 KB 728.

43. It is notable that the caselaw as referenced by counsel for the appellant which highlights the need for custom which allows for layoff without pay has generally been considered where there is no contract or where the contract is silent on the issue of layoff.’

The respondent distinguishes Lawe v Irish Country Meats as the work environment was in freefall as a result of the pandemic. It was submitted that the common law could not have countenanced the workplace post March 2020. There was also a statutory scheme available (PUP).

In further post-hearing correspondence, the respondent outlined that the complainant had been paid €179.10 on the 10th June 2020. This was the amount stated in the pay slip of the 12th June 2020.

The complainant worked for the respondent from the 9th June 2004 to the 12th January 2021. He worked as a delivery driver and the respondent provides parts in the motor industry. The respondent was subject to a transfer of undertaking in 2019.

The complainant had previously worked five days per week and after the transfer of undertaking, he began to work two days per week. The parties provided differing accounts of what happened. The respondent outlined that the complainant asked for fewer working days per week; the complainant outlined that this reduction in hours was imposed on him. I note the differing accounts, but it is not necessary for me to resolve it for the purpose of these decisions. I take the complainant’s normal working week as being two days per week.

In their post-hearing correspondence, the parties differed as to what was paid to the complainant in June 2020. The complainant said that he was last paid on the 3rd June 2020 and that he had not received pay slips. The respondent said that the last payment was on the 10th June 2020 and that the submitted pay slips were sent to the complainant at a stated email address. Pay slips are always a strong indicator of what was paid and when it was paid. In this case, the pay slips describe the amounts paid as ‘pay’ and they continued until the last payment on the 10th June 2020. They were in the amount of €180 per week.

It was not disputed that the respondent was designated an essential service during the Covid-19 pandemic and that it did not close during the lockdowns. The evidence was that the service was operated by management between March and June 2020. In June 2020, staff returned to their duties, but not the complainant. The respondent asserts that the complainant was laid-off and that this was unpaid lay-off from March 2020. The complainant asserts that he had the right to be paid during lay-off. I address the lay-off issue in more detail below.

The respondent participated in the Temporary Wage Subsidy Scheme, which was operated by Revenue from the 26th March to the 31st August 2020. The respondent confirmed that it had not availed of the TWSS in respect of the complainant, and he was not a ‘designated employee’ in respect of the wage subsidy scheme. There was no maximum age for a ‘designated employee’ under the TWSS, while older workers, such as the complainant, were ineligible for PUP.

The sharpest conflict of evidence related to the phone call of the 2nd June 2020. The complainant outlined that the accounts director phoned him and told him that he was “gone”, i.e. his employment was to end. The respondent denied that the complainant was told this. Before exploring this conflict in evidence, a useful starting point is to review the extensive contemporaneous correspondence exchanged by the parties.

Correspondence exchanged by the parties

In the letter of the 12th June 2020, the respondent outlined that the complainant was being placed on lay-off as of that date. It stated that all staff except management had been on lay-off since the 27th March 2020. It stated that the remuneration received by the complainant between March and June was accrued annual leave. It referred to Government advice that the complainant should cocoon because of his age. It stated ‘the company is doing everything possible to recommence normal working levels and will notify you if you are required to resume work’.

In the letter of the 20th June 2020, the complainant’s solicitor sets out the complainant’s account of the phone call of the 2nd June 2020, specifically that the complainant was told he was “gone”. It sets out that the complainant’s colleague, another delivery driver, had already returned to work.

The respondent’s email of the 29th June 2020 stated that the business has struggled during the pandemic and was operating a reduced service. It stated that the complainant had been laid off in accordance with his contractual terms. It stated that employees would be brought back in line with their needs and fair selection. It stated that when work was available, employees would be brought back as needed. On the same date, the complainant asked what contractual terms the respondent was referring to as he could not recall any such terms. He also stated that he had not consented to the lay-off. The complainant refers to reducing his working days to two days per week “to avoid being dismissed”. In a further reply of the 30th June 2020, the respondent stated that the lay-off arose from the pandemic and decisions in respect of lay-off were made following full and fair procedures. It declined to discuss the situation of other employees.

By letter of the 12th August 2019, the respondent informed the complainant of an amendment to his terms of employment. This provides for a two-day week, Monday and Friday.

The statement of terms of employment provided by the respondent is not signed. It provides for lay-off in the following terms: ‘The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in full employment. You will receive as much notice as is reasonably possible prior to such lay-off or short-time. You will not be paid during the lay-off period. You will be paid for the hours actually worked during the periods of short-time.’

By email of the 17th July 2020, the complainant asserts that he had never seen the contract before and that its terms relating to lay-off were never discussed with him. He again asked for the fair procedures in lay-off the respondent had referred to in earlier correspondence. This was repeated in the letter of the 22nd July 2020.

By letter of the 24th August 2020 sent directly to the complainant (and not his solicitor), the respondent stated that it had been able to re-open most of its branches and was constantly re-assessing at every step as ‘trading has not yet resumed, as normal’. It stated ‘unfortunately at this present time the work for your role is not needed, hence you will remain on lay-off for the time being’.

In the reply of the 2nd September 2020, the complainant referred to other drivers going back to work while he remained on lay-off. The complainant asks when he will be re-engaged to his role. In its reply of the same date, the respondent denied the complainant’s allegations and stated that the need for the lay-off had a clear business rationale due to the pandemic. It stated that this had been done fairly and in line with fair procedures, which it was not required to share with the complainant’s solicitor.

In the letter of the 3rd September 2020, the complainant sought payment of his arrears of wages and to return to work immediately. In its letter of the 16th September 2020, the respondent stated that staff had returned from lay-off ‘as they were needed’ and he was not entitled to be paid while on lay-off. It stated that the complainant’s hours had been reduced in 2019 and while a contract had been drawn up for him, it was unissued. It stated that there were no other part-time employees who had returned from lay-off.

The next item of correspondence was the letter of dismissal of the 12th January 2021. It notifies the complainant of the termination of his employment. It states that he was being paid eight weeks of notice pay and an ex gratia payment of four weeks. It stated that annual leave had been paid in June 2020 and no further annual leave had accrued. It stated that the termination took effect as of the date of the letter and wished the complainant all the best in the future.

By letter of the 13th January 2021, the complainant’s solicitor asked the respondent why the complainant’s employment was being terminated and why his employment, over and above anyone else. On the 14th January 2021, the respondent’s solicitor replied that this was a no-fault termination.

By letter of the 16th February 2021, the complainant’s solicitors outlined that he was entitled to a redundancy lump sum payment of €6,159.60, wages of €5,682.86 and accrued holiday pay of €455.04.

Statutory background to lay-off

Section 11(1) of the Redundancy Payments Act defines ‘lay-off’:

‘Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.’

The statutory definition of lay-off reflected the well-established common law concept of lay-off as the temporary cessation of the employment contract because work is not available.

Payment of Wages Act & lay-off

The Payment of Wages Act defines ‘wages’ as any sums payable to the employee in connection with the employment. Section 5 regulates deductions made to wages ‘properly payable’ to an employee. There is no explicit reference to lay-off in the Payment of Wages Act.

Where an employee asserts that they have not been paid their full wages, they may opt for a Payment of Wages claim or a breach of contract claim in the courts. It is, therefore, not surprising that case law around the right to be paid or the right to make a deduction have been read across from Payment of Wages claims to breach of contract claims, and vice versa. Notably, this has occurred in cases involving the right to be paid during lay-off. 

Jurisprudence related to lay-off

I am grateful for the extensive submissions of the parties on the questions of lay-off and the requirement to pay wages during lay-off. Before looking at the detail of what happened in this case, I draw the following from the cases cited by the parties and other cases.

Devonald v Rosser & Sons [1906] 2 KB 728 was an important test case in the early 20th century relating to the entitlement of a tinplate worker in south Wales to be paid during a notice period. The worker was paid on a piecework basis and only paid for each piece of tinplate they produced. The business was to close and rather than provide work to the worker during the contractual notice period, it shut its doors immediately. The question was whether the worker was entitled to be paid during the notice period when no work was provided by the employer, and he could not work for another employer. The High Court and the Court of Appeal held that he was entitled to be paid as the employer had not shown that there was a ‘reasonable, certain and notorious’ custom of not being paid in periods of lay-off.

Devonald v Rosser & Sons involved a ‘hybrid’ contract of a piece worker who was required to give notice to terminate the employment relationship and could not work for others in a notice period. It was a breach of contract claim and the court held that the employer was required to provide piece work during the notice period where ‘work was to be had’. The employer had to show that there was a ‘reasonable, certain and notorious’ custom of not providing piece work and was held not to have done so. The court distinguished the ‘hybrid’ contract in this case where the employee has an entitlement to a fixed rate of pay (where the employee would also succeed) and where there was a piece work contract with no notice period (where the employer would succeed). The court also pointed to other circumstances where the employer would not be obliged to provide piecework, citing the contingencies of a breakdown of machinery or a want of water and materials.

In Lawe v Irish Country Meats [1998] ELR 266, there was an established custom in respect of unpaid lay-off (e.g. shortage or raw materials, slackness of work and seasonal problems). It was held that the established custom did not apply to the circumstances of the case and the employee was available for work on the days in question. He was, therefore, entitled to be paid for these days. The plaintiff had not been involved in industrial action as others had and there was certainly work available.

Petkevicius v Goode Concrete Ltd (in receivership) [2014] IEHC 66 was an appeal on a point of law under the Payment of Wages Act. In considering lay-off, the High Court applied the definition set out in section 11 of the Redundancy Payments Act. As general principle, Kearns P. held that a laid-off employee could be entitled to wages during lay-off. In the particular case, the Court found that the employer had complied with the notice requirement in section 11 and believed that the cessation was temporary. The Court accepted the finding of the Employment Appeals Tribunal that custom in construction was for unpaid lay-off. It was clear in Petkevicius that there was no work available; the issue was the entitlement to pay for a period of 16 weeks.

Like Petkevicius, Chmiel v Concast Concrete PW725/2012 was a payment of wages claim taken by construction workers, an industry then in ‘freefall’. While the contract allowed for lay-off, the Tribunal held that there was an agreement with the union that any lay-off would be unpaid and that this was also the custom in the industry. The Tribunal held that the employees were given notice of their lay-off and were not entitled to be paid during this period. It was clear in Chmiel that there was no work available.

In McDonagh v Shoreline Taverns [2014] ELR 98, the Employment Appeals Tribunal concluded that section 11 of the Redundancy Payments Act had been ‘genuinely’ invoked and that there was a temporary cessation of work. While the claimant never returned to work, the Tribunal accepted that the lay-off was during a traditionally quiet period and followed a downturn in business. The lay-off commenced in February and the employee sought his redundancy in May 2012. The Tribunal found that the claimant was not entitled to be paid during the period of lay-off. 

In Ciszewska v William P Keeling & Sons PWD2010, the Labour Court outlined that lay-off was provided for in the contract of employment. There was no question that the lay-off was genuine; the lay-off was for one month over the winter when there was no soft fruit to pick. There was a well-established Winter Shutdown in the employer business. While the claimant and her colleagues had not been laid off in previous years, many others were. It was clear that there was substantially less work available for the four weeks of the employees’ lay-off.

Taken together, Devonald v Rosser & Sons is authority that periods of lay-off may be unpaid if there was ‘notorious’ custom for this. Also, it held that the worker should have been provided work as there was ‘work to be had’. It also posited that unforeseen circumstances could justify unpaid lay-off; a ‘notorious’ custom was not the only ground. Petkevicius, Chmiel and McDonagh arose from the economic crash in the early 2010s; there was no real controversy that the businesses had closed or were struggling. Notably, Petkevicius is a High Court judgment of an appeal in a Payment of Wages Act case, where the principle was accepted that wages could be ‘properly payable’ during lay-off. In Lawe, the Court accepted that there was a custom for unpaid lay-off, but this custom did not apply in the circumstances of the case. In Ciszewska v William P Keeling & Sons, it was clear that there was a well-established pattern of seasonal unpaid lay-offs.

Applying these authorities to the current case, I accept that the onset of the Covid-19 pandemic and the consequent closure of many businesses was an unforeseen contingency, as posited in Devonald v Rosser & Sons. The second factor, however, is the very significant wage subsidy schemes put in place by Government, for example the Temporary Wage Subsidy Scheme, enacted by section 28 of the Emergency Measures in the Public Interest (Covid-19) Act, 2020. Unlike in the above cited cases, there was a wage subsidy scheme available to cover wage costs of ‘adversely affected’ businesses and to keep employees on pay-roll. The purpose of the scheme was to cover wage costs of employees in these businesses, whether they were laid off or still at work (that is, going to the workplace or working from home). Third, an employer must comply with the requirement to serve a lay-off notice on the employee. A fourth factor is that these authorities make clear that there must be an actual cessation in the availability of work for the employee to do; the ‘work to be had’ so important in Devonald v Rosser & Sons and Lawe. Fifth, the employer must believe that the cessation is temporary.

Findings in respect of this case

The respondent did not formally notify the complainant in writing that the period of 27th March to 10th June 2020 was lay-off. I accept that the business scaled back in response to the lockdown. It continued to operate as an essential service and all the functions, including deliveries, were carried out by management.

The complainant received his full pay in this period. While the respondent maintains that this was for accrued annual leave, the pay slips do not refer to the payments as such as nor is there any other correspondence until the 10th June 2020 when the respondent stated that it was no longer paying wages and instead had paid accrued annual leave. Not only is there no earlier letter to this effect, but the pay slips also refer to the payments as ‘pay’ and not ‘annual leave’ or ‘holiday pay’. I find, therefore, that the complainant was paid the wages due in this period.

As mentioned above, there was a conflict of evidence regarding a phone call on the 2nd June 2020. I resolve the conflict in the complainant’s favour for the following reasons. First, the complainant gave a clear and consistent account of the phone call. Second, the first letter from his solicitor (dated the 12th June 2020) replies to the respondent’s letter of the 10th June 2020 and specifically mentioned the phone call. One would expect the respondent’s reply (the email of the 29th June 2020) to directly challenge the accuracy of the statement made in the letter of the 12th June 2020 that the conversation had taken place and that the complainant was told he was ‘gone’. What the complainant said he was told was very different from what was described in the letter of the 10th June 2020, so one would expect the respondent to immediately challenge the complainant’s account of the phone call.

For these reasons, I find that there was a phone call between the respondent and the complainant in or around the 2nd June 2020, where the complainant was told he was gone.

The respondent’s position is that it was adversely affected by the pandemic and the lockdown. It availed of the subsidy scheme provided by Government to assist such businesses, but not in respect of the complainant. This was discussed at the adjudication hearing. No explanation was provided why the complainant was not designated under the Temporary Wage Subsidy Scheme, in particular as the scheme was availed of for others. The respondent was aware that the complainant was not entitled to the Pandemic Unemployment Payment. It is not clear why certain employees were treated in one way in respect of TWSS, and others treated differently. The lack of explanation allows an inference to be drawn regarding how the complainant was subject to different treatment than colleagues.

What is clear from the above-cited case law is that there must be an actual cessation of work available for the employee to do for there to be a lay-off and lay-off does not apply when there is ‘work to be had’. The evidence in this case suggests that there was work available for the complainant to do from June 2020 onwards. The respondent was an essential service and continued to trade. The respondent branches opened, and delivery drivers returned to work, including the colleague cited by the complainant. If there was less work to do, it would appear to have been easier to bring back the part-time employee (the complainant) rather than a full-time employee (his colleague).

The complainant and his solicitor asked many times for an explanation as to how the decision was made to lay him off and not others. They also asked for the fair procedures cited by the respondent in correspondence. No explanation was provided, nor were the procedures. An inference can be drawn from the lack of a response that there was, in fact, work available to provide to the complainant.

It is also noteworthy that the respondent did not comply with the notice requirements of section 11 of the Redundancy Payments Act prior to lay-off. The first letter was dated the 12th June 2020, some months into the lay-off.

The letter of the 12th June 2020 refers to then health advice for older people to cocoon. This advice does not state that older workers should not attend work. Even if the employer felt it best for the complainant not to attend work because of his age and the public health risk, this could not be lay-off, as lay-off is specifically related to the unavailability of work. If it was a capacity issue or a matter of health and safety, the employer would have to consult with the employee to see whether their return could be accommodated.  Even if this process concluded that the complainant could not return, the question of whether the complainant should be paid would not be determined according to whether he was on lay-off. It is not for this adjudication to consider whether there was an entitlement to be paid for an employee who could not attend work on public health grounds.

In conclusion, while the respondent did not serve the required lay-off notice, I accept that work was not available for the complainant to do between the 27th March and the 10th June 2020. The complainant received remuneration up to the 10th June 2020 (as contended by the respondent) and I find that this is pay. I find that insufficient evidence was presented to show that work was not available for the complainant to do after the 11th June 2020. I note that staff, including delivery drivers, returned to work and its branches re-opened. Insufficient information was provided as to why the complainant was not allowed return to work from June 2020 onwards, i.e. the detailed basis of not allowing him back.

The phone call of the 2nd June 2020 is significant as the complainant was told he was ‘gone’ and this was borne out by how he was treated thereafter; the complainant never returned to work. Of significance is that no explanation was forthcoming as to why the respondent availed of the Temporary Wage Subsidy Scheme in respect of some employees but not the complainant. This suggests that the complainant was differentially treated, and I infer that this was both in the decision not to designate him for the purposes of TWSS and to keep him out of work beyond June 2020.

I conclude that the complainant was not on lay-off from the 11th June 2020 to the ending of his employment on the 12th January 2021. Rather, the complainant was not allowed back to the workplace to take up his duties. There is no common law or statutory provision, nor custom and practice, which allows an employee to be excluded from the workplace in this way. Such an employee continues to be entitled to their contractual entitlements, for example pay.

CA-00040593-001

This is a complaint pursuant to the Terms of Employment (Information) Act. Section 3 requires the employer to provide the employee with a statement of their terms of employment. This should occur within two months of the commencement of the employment and is a subsisting breach throughout the employment, unless provided. While in this case a statement was drawn up, it was not provided to the complainant in time.

This was, therefore, a contravention of the Terms of Employment (Information) Act. The requirement set out in section 3 has been law since the 16th May 1994. The Terms of Employment (Information) Act transposes the Written Terms Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). As it arises from EU law, redress must be ‘effective, dissuasive and proportionate’. The complainant received weekly pay of €180 and the Act sets out that the maximum award for a breach of section 3 is four weeks’ pay. I, therefore, award the complainant redress of €720.

CA-00040593-002

This is a Payment of Wages Act complaint relating to the non-payment to the complainant of wages. The complaint was submitted to the Workplace Relations Commission on the 23rd October 2020. I have found that the complainant was paid his wages in full until the 10th June 2020. The period within the ambit of this complaint is the 11th June 2020 to the 23rd October 2020. This is a period of 19 weeks.

I have found that the complainant was not properly on lay-off from the 11th June 2020 as insufficient evidence was presented of an unavailability of work for him to do. As he was not on a genuine lay-off, as provided by statute or at common law, the complainant’s wages were properly payable.

The complainant is entitled to wages of €3,420 for this reference period (€180 x 19). The complainant accrued annual leave, which was not paid. I, therefore, award €360 in holiday pay accrued in the six months prior to the lodging of this complaint (equivalent to two weeks’ pay). The sum of these two amounts is €3,780.

CA-00040593-001

I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded, and the respondent shall pay to the complainant €720.

CA-00040593-002

I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant compensation of €3,780.

Lay-off / Unavailability of work / Wages

Payment of Wages Act / Terms of Employment (Information) Act