ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00032338
Parties:
| Complainant | Respondent |
Parties | John Healy | Ashgrove Interparts Limited |
Representatives | Nugent and Co. Solicitors | Andrew Whelan BL, instructed by Collins Crowley Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967 | CA-00042875-001 | 05/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042875-002 | 05/03/2021 |
Date of Adjudication Hearing: 09/06/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 5th March 2021, the complainant referred complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act and the Redundancy Payments Act. The complaints were referred to adjudication on the 9th June 2021. They were heard with other complaints submitted by the complainant against this respondent, addressed in ADJ-00030300 (Terms of Employment (Information) Act and Payment of Wages Act).
Following the designation of the Workplace Relations Commission per section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, the adjudication was held remotely.
The complainant attended the adjudication and was represented by Michael Nugent, solicitor. The respondent was represented by Andrew Whelan, BL instructed by Kerrie Dunne, Collins Crowley solicitors. The accounts director attended as witness for the respondent.
The parties made legal submissions at the hearing and in writing afterwards. The respondent submitted pay slips after the hearing and the parties corresponded on matters arising at the hearing.
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 stopped working for the respondent in March 2020 because of the Covid-19 pandemic. He states that he ought to have been paid wages until the ending of his employment on the 12th January 2021. He further asserts that his employment ended by way of redundancy. The respondent states that the complainant was on lay-off arising from the Covid-19 pandemic and that this was unpaid lay-off. It asserted that the complainant’s employment ended by way of a no-fault termination and none of the grounds in the Redundancy Payments Act applies. |
Summary of Complainant’s Case:
The detail of the complainant’s presentation and evidence is set out in the decision in ADJ-00030300. The complainant outlined that he should have been paid wages as there was no contractual or statutory basis for the deductions. The complainant outlined that the respondent had acknowledged that his employment ended because of the pandemic. A redundancy situation, therefore, arose. |
Summary of Respondent’s Case:
The detail of the respondent’s presentation and evidence is set out in the decision in ADJ-00030300. The respondent outlined that the complainant had been on lay-off and was not entitled to be paid during this period. The respondent outlined that the complainant’s employment had terminated with notice, as permitted by the contract of employment. He was paid notice. None of the redundancy scenarios set out in section 7(2) of the Redundancy Payments Act applied to this case, so the complainant was not made redundant. |
Findings and Conclusions:
I refer to the detailed findings made in ADJ-00030300 regarding lay-off, the Redundancy Payments Act and the Payment of Wages Act. Those findings are applicable to the complaints addressed below.
CA-00042875-001 The complainant outlines that his role as delivery driver was redundant and he is entitled to a redundancy lump sum payment. The respondent asserts that it terminated the complainant’s employment via a no-fault termination and that there was no redundancy situation.
I find that section 7(2)(c) of the Redundancy Payments Act applies in this case. The complainant was dismissed wholly or mainly on grounds that the employer decided to carry on its business with fewer employees and the work previously done by the complainant was to be done by others. This is what occurred as the complainant was not allowed back to work and his delivery routes were now done by others.
The complainant’s employment commenced on the 9th June 2004 and ended on the 12th January 2021. This service is reckonable as the respondent had not served a section 11 notice in advance of the lay-off commencing on the 27th March to the 10th June 2020. I have found that there was no lay-off after the 11th June 2020 as there was work available to provide to the complainant.
I find that the gross weekly wage is €180 per week. The complainant’s normal working hours was two days per week in the last year of the employment. While the parties differed regarding the circumstances around the reduction in the complainant’s working week, it is not disputed that he worked for only two days per week since 2019.
I find that the complainant’s employment was terminated by reason of redundancy, and he is entitled to a redundancy lump sum payment in accordance with the Redundancy Payments Act. The complainant is entitled to a redundancy lump sum payment in accordance with the following criteria: Employment start date: 9th June 2004 Employment end date: 12th January 2021 Gross weekly wage: €180
This award is made subject to the complainant being in insurable employment under the Social Welfare Acts during the relevant period.
CA-00042875-002 This is a complaint pursuant to the Payment of Wages Act. I have found that the complainant was paid his normal weekly wage until the 10th June 2020. The period of unpaid wages between 11th June and the 23rd October 2020 is addressed in CA-00040593-001. This complaint addresses the period thereafter, from the 24th October 2020 to the 12th January 2021. This is a period of 13 weeks.
I have found that the complainant is entitled to be paid his normal weekly wage and that their non-payment is an unlawful deduction per the Payment of Wages Act. Their non-payment is a contravention of the Payment of Wages Act. I have found that the complainant was not laid off as the evidence indicates that work was available for him to do. I have found that he was not allowed to resume his duties and that this does not constitute lay-off in common law or under statute. The complainant’s wages continued to be properly payable.
The complainant is owed 13 weeks of wages. This is €2,340 (€180 x 13). He accrued annual leave (as there was no lay-off in this period) and is owed €180 in holiday pay (13/52 x €720 (four weeks wages)). The sum of these amounts is €2,520. |
Decisions:
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
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.
CA-00042875-001 I decide that the complainant’s employment was terminated by reason of redundancy, and he is entitled to a redundancy lump sum payment in accordance with the Redundancy Payments Act. The complainant is entitled to a redundancy lump sum payment in accordance with the following criteria:
Employment start date: 9th June 2004 Employment end date: 12th January 2021 Gross weekly wage: €180
This award is made subject to the complainant being in insurable employment under the Social Welfare Acts during the relevant period.
CA-00042875-002 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 €2,520. |
Dated: 28th February 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Lay-off Redundancy Payment Act Payment of Wages Act |