Complainant

Respondent

Parties

Fintan  Reddy

Ardbrook Limited

Representatives

Declan Groarke Lewis Silkin Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039200-001

17/08/2020

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

CA-00039200-002

17/08/2020

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

CA-00039200-003

17/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039200-004

17/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039984-001

22/09/2020

The Complainant commenced employment with the Respondent on 8 August 2011.  His employment ended on 9 June 2020.  He was paid a monthly salary of €8,122.33 and worked 35 hours per week.  The Complainant was a General Manager for the Respondent, a Software Development Company. The Complainant lodged a Complaint Form with the WRC which was received on 17 August 2020.

The matter was heard by way of remote hearing on 3 November 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The Respondent provided a written submission.

In opening, the Respondent stated that the Complainant’s role was a one-person role and there were no pooling options available. At a meeting held on 28 April 2020, the Respondent had outlined to the Complainant the reasons why his role was being made redundant.  The next day the Respondent sent an email to the Complainant confirming the redundancy. 

The Respondent submitted that the Complainant commenced employment with the company on 8 August 2011.  His role within the organisation was mainly in sales and new business development.  He had a contract of employment issued to him in May 2018 however he did not sign it.  The company was subsequently acquired by a new owner (the Respondent) in August 2018. At the time of the acquisition the Respondent asked the seller to formalise contracts with each employee. Again, the Complainant refused to sign the proffered contract.

In June 2019, the Respondent offered the Complainant a promotional position within the organisation to the role of General Manager.  An email was sent to the Complainant on 10 June 2019 outlining the high expectations of the role. When taking the role, it was explained to the Complainant by the Respondent that he would have to drive new business into the organisation and have responsibility for overseeing the annual sales/commission targets, which would be reviewed and signed off on a monthly basis. It was highlighted to the Complainant that it would be vital for him, in the role of General Manager, to grow profit back into the business. In July 2019, the Respondent hired a Junior Sales Executive, reporting directly to the Complainant, to support the Complainant in meeting these targets.

It was also the Respondent’s expectation that the General Manager would act as the site lead and that he would provide the Respondent with updates to him in relation to the technical and commercial operations within his area of the business.

The Respondent submits that after discussions around the remuneration being offered for the General Manager role, the Complainant decided the offer was reasonable, but he wanted to be paid under his old terms until December 2019.  The Respondent questioned this at the time but agreed to the December date hoping to drive the business forward and keep the Complainant positively engaged in his new role.

During the period of June 2019 to April 2020, KPI reports were provided to the Respondent only sporadically by the Complainant, which the Respondent submits serves as evidence of the (non) viability of the long-term value of the Complainant’s role within the business. The Respondent outlined his concerns relating to the number of sales being made under the Complainant’s management in several emails sent to the Complainant in July, September and November 2019 and February 2020.  In early April 2020, a verbal discussion took place between the Respondent and the Complainant on the same matter.

On 28 April 2020, the Respondent met with the Complainant to discuss the long-term viability of his role as General Manager.  During this meeting the Respondent submits that he told the Complainant that his role was being made redundant for the following reasons:

·       Lack of new business sales being generated into the business.

·       The lack of long-term opportunity to create new sales given the pandemic climate.

·       With all employees deemed capable of working from home (in line with Government guidelines) and maintaining performance standards, the closure of the site where the Complainant was based could be accelerated and no site lead would be required.

·       The day-to-day running of the office and operations had become non-existent and the reporting lines of the other employees would now be absorbed into the wider Group business unit leaders allowing the planned people integration plan to commence (the two sites run by the company could be amalgamated).

In the Respondent’s submission, he “admits” that he did not follow due process in relation to standard redundancy process and accepts responsibility for (i) not advising the Complainant his role was at risk of redundancy (ii) not inviting the Complainant to redundancy consultation (iii) not affording the Complainant the right to appeal the decision to make him redundant.

The Respondent denies he did not offer the Complainant alternative employment, he submits that he did offer a “more junior” sales role in the organisation but the Complainant declined this offer.  The Respondent submits that he also offered the Complainant a consultancy role which was also declined.

Regarding the Temporary Wage Subsidy Scheme (TWSS), the Respondent submits that he was not obliged to explain the reasons why he took the decision not to avail of the scheme.

The Respondent submits that he never before had to make an employee redundant. When the error in process was brought to his attention, which, the Respondent submits, was wholly due to inexperience and lack of awareness on his part, the Respondent worked proactively with the Complainant’s legal counsel and enlisted the help of a HR consultant in an attempt to mediate the issue at his expense.

The Respondent submits that he has paid the Complainant his full redundancy entitlement and has employed a full time HR Manager to ensure that this process will be managed correctly in the future.

The Respondent maintains that this was a genuine redundancy for the reasons listed above.

The Respondent submits that the Complainant has exhibited a pattern of being reluctant to close out on compensation, contract changes or settlement agreements unless it was of maximum financial benefit to him.  The Respondent supplied a number of instances to highlight this point.

In direct evidence at the hearing, the Respondent stated that he had never had to deal with a redundancy situation prior to this one.  He stated that he thought he worked well with the Complainant but there were issues relating to recurring commissions and how this negatively impacted on growing new sales.  He had made several efforts to persuade the Complainant to move his commissions into a salary structure, but no agreement had been reached on this between the parties.

The Respondent stated that things had “changed dramatically” in March 2020. Having assessed the role, the Respondent had come to the view that the Complainant’s role was no longer sustainable, and no move or change was possible. It was decided to close one office site. Making people redundant was not what he had wanted to do and that it had not been carried out as it should have been.

In response to a question, the Respondent stated that there had been other redundancies when the two sites merged. The Respondent also stated that the company did not have a written redundancy policy.

In concluding, the Respondent stated that although accepting that there had been problems with how the process was handled, there were genuine reasons for the redundancy.  It was pointed out that the role created by the redundancy had not been backfilled and the two company sites had been integrated into one.  It was also put forward that the Complainant was not the only employee let go because of their skill sets.

The Complainant provided a detailed written submission.

The Complainant submits that he commenced employment with a software company in August 2011.  In or around August 2018 the company the Complainant was working for was acquired by the Respondent. The Complainant was issued with a new contract of employment dated 1 August 2018.  Prior to this the Complainant had not been issued with a contract of employment but it was understood he was engaged as a Business Development Manager.

On 10 June 2019, the Complainant was offered the position of General Manager by the Respondent. However, due to a disagreement between the parties about the remuneration on offer, the Complainant, believing what he was being offered was less favourable than that which he was being paid, the appointment did not take place. It was agreed between the parties that the Complainant would continue to work under his existing terms and conditions of employment to allow both parties an opportunity to discuss and agree on an alternative remuneration package. The Complainant met with the Respondent in October 2019, but no agreement was reached in relation to remuneration; it was agreed the Complainant would be paid as per his existing arrangement until the end of the year, to allow further discussion on the matter. The Complainant’s remuneration structure was never revisited. 

The Complainant submits that his remuneration package consisted of, (i) a base salary of €39,000 per annum (ii) a commission of 15% on all new sales revenues other than printed and email payslips, (iii) commission at 15% on all renewal license fees relating to DEFT (Direct Electronic Funds Transfer) product.  The Complainant submits that in the three financial years preceding his dismissal (2017 to 2019) he earned on average €98,620.51 per annum including pension contributions. 

The Complainant submits that on 28 April 2020, he was called to a meeting with the Respondent.  At this meeting the Respondent advised the Complainant that he was terminating his position as he did not see a future for it in the business.  The Complainant commented that his position was being made redundant to which the Respondent replied that he had no specific date in mind for the Complainant’s termination, nor had he any plan and that he wanted to discuss it with the Complainant. The Complainant submits that at this meeting the pandemic was not given as a reason for the advised redundancy.

On 29 April 2020, the Respondent emailed the Complainant to confirm that his position as “Business Development Manager” was being made redundant because, “[t]he current pandemic has caused no sales activity for the foreseeable future and reduction in Revenues”.  The Respondent confirmed that the Complainant’s redundancy would take effect immediately, on 29 April 2020, but that the Complainant would not have to attend work during his notice period.

Later the same day, 29 April 2020, the Complainant replied to the Respondent by email. In this email the Complainant summarised what had been discussed at the meeting with the Respondent the previous day. The Complainant stated that (i) his role in the company was General Manager, not Business Development Manager (ii) that during their discussions on 28 April 2020, the reason given by the Respondent for making the Complainant redundant was that he did not see a future for the Complainant’s position in the business long-term, that he saw no separate payroll group rather that this function would shrink into the main office.  The Complainant also stated in the email that at no time during the discussions he had had with the Respondent the previous day had the pandemic been mentioned or given as a cause for the Respondent’s decision regarding the Complainant’s redundancy. (iii) In addition, the Complainant noted that he had raised the possibility of applying for the Covid 19 Temporary Wage Subsidy Scheme (TWSS) but that the Respondent had said he would not apply for it and did not know if the company would operate it in the future. In addition, the Complainant sought confirmation regarding payments due and owing to him in relation to the termination of his employment including his redundancy payment, salary, commission and pay in respect of outstanding holiday entitlements.

The Complainant submits that on 7 May 2020, the Respondent emailed the Complainant to confirm that he would receive a statutory redundancy payment of €11,076 on the basis that his service ran from 8 August 2011 to 28 April 2020.  The Respondent also confirmed that the Complainant would be paid his salary, commission and outstanding holidays in the May pay role cycle.  This, according to the Complainant, contradicts the previously confirmed termination date provided by the Respondent to the Complainant in his email of 29 April 2020, in which the Respondent had stated that the termination would be immediate.  The Complainant replied to this email on 11 May 2020, outlining his disappointment at what had been presented to him.

The Complainant submits that there were some attempts to reach an agreement regarding his termination after this, but no agreement was reached.  On 25 June 2020, the Complainant received a payslip which detailed the following amounts which were paid into his back account shortly thereafter; (i) Statutory redundancy of €11,172 (ii) Salary of €3,250.

On 24 August 2020, the Complainant received another payment of €4,297 defined in a payslip as commission.

Following this the parties entered mediation in an attempt to resolve matters. At mediation it was agreed that the Complainant’s statutory redundancy payment, salary, commission and holiday pay would be calculated to a termination date of 9 June 2020.  On 24 September 2020, the Complainant received another payment as follows; (i) salary; €1,050, (ii) Commission; €943 (iii) Holiday pay; €495 and Statutory Redundancy; €48.  No enforceable or binding agreement or waiver of claims was executed by the Complainant. 

In the Complainant’s submission, he refers to Section 6 (1) of the Unfair Dismissals Act, 1977 and Section 7 (2) of the Redundancy Payments Act, 1967 and the case of JVC Europe Ltd v Panisi [2011] IEHC 279.  The Complainant submits that regarding the Recitals of Judge Charleton in JVC, redundancy may be deemed a fair reason for dismissal but the onus lies on the Respondent to establish that there was a genuine redundancy situation and further what kind of redundancy is pertinent having regard to the Redundancy Payments Act. The Complainant submits that Judge Charleton also highlighted the requirement of impersonality in effecting a fair dismissal on grounds of redundancy.  The Complainant submits that the onus is on the Respondent to demonstrate why the Complainant was chosen for redundancy and how he was selected fairly on the basis of independent, objective and verifiable criteria.

The Complainant submits that this was not a genuine redundancy situation as no pertinent reason was provided to the Complainant as to why the Respondent was required to terminate his employment.  The Complainant maintains that the Respondent provided separate and distinct reasons at the meeting of 28 April 2020 and in his email of 29 April 2020.

The Complainant denies there were any good business reasons for making him redundant as put forward by the Respondent. The Complainant is of the view that the real reason the Respondent terminated his employment was because he was discontent with the amount of remuneration the Complainant enjoyed.

The Complainant understands that no other employee among the 45 employed by the Respondent company was placed at risk or made redundant at the same time as he was made redundant.

The Complainant further submits that he was not fairly selected, and no fair procedures were followed in the manner in which the termination of his employment was carried out, as required by section 6(3) of the Unfair Dismissals Act.   In this case, the Respondent never indicated what selection criteria or procedure was used to identify why the Complainant’s position was at risk of redundancy. The Complainant submits that the did not fulfil the requirements of a reasonable employer in regard to carrying out a redundancy.

The Complainant submits he was not afforded an opportunity to appeal the decision to make his position redundant.

In response to questions put to him by the Complainant’s representative, the Respondent agreed that the pandemic was one reason among a number for the redundancy. He also accepted that errors had been made procedurally in the handling of the redundancy.  He denied that the redundancy had been a sham, rather it had been made for good business reasons.

In closing, the Complainant put forward that in a redundancy situation the onus is on the employer to prove that it was fair and reasonable; this case it was a fait au complete.  On 28 April 2020, the Complainant was given reasons why he was being made redundant but the next day he was emailed, and the pandemic was given as the reason for the redundancy.  When the Complainant emailed the Respondent on the matter, he got no response.

The Complainant believes the dismissal was unfair and the procedures used were unfair.

The Complainant submits that since the termination of his employment with the Respondent he has made significant efforts to find alternative employment. In the 18 months leading up to the hearing the Complainant has applied for 104 vacancies without success.

I have carefully considered the evidence adduced during the hearing of this matter.

The Complainant asserts that he was unfairly dismissed. The Respondent asserts that the termination of employment was due to redundancy as the job was no longer viable in the circumstances where prospects for new sales and long-term sales did not look good due to the pandemic and because two sites were being amalgamated.

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -  

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(c) of the 1977 Act provides that: -  

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ... the redundancy of the employee...

Section 6(7) provides that: -

 Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Sec 7(2) The Redundancy Payments Act1967 states:

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 in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or 

c)       the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

 d)      the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

 e)      the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

I refer to Quinn (Jnr)-v-Quinn Insurances Limited UD2415/2011 in which the EAT noted for a redundancy defence to succeed it must result from (as per Section 7 (2) of the Redundancy Payments Acts 1967, as amended) "reasons not related to the employee concerned". In this regard redundancy is impersonal and where impersonality runs through the five definitions of Redundancy as set out at Section 7 (2) of the Redundancy Payments Act 1967, and as referred to above.

 I am also conscious of the decision in JVC Europe Ltd v Panisi [2011] IEHC 279, in which Charleton J warned at paragraph 5 of his judgment: “In an unfair dismissal claim, where the answer is asserting to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. It must result from, as Section 7(2) of the Redundancy Payments Act 1967, as amended, provides, ‘reasons not related to the employee concerned.

‘Redundancy, cannot, therefore, be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy but a dismissal”

The first issue that must be addressed is whether there was a valid redundancy situation in the Respondent company. The burden of proof rests with the Respondent to establish that the dismissal was wholly redundancy connected. The Respondent must then justify that the process whereby the Complainant was selected for redundancy, was fair and transparent in all respects. 

 I found the evidence of the Respondent on why the Complainant’s role was being made redundant unconvincing for several reasons. Firstly, the Respondent did not put forward evidence to support the idea that the company might be experiencing financial difficulties or be genuinely concerned and worried about future sales. Secondly, the reason given for the redundancy changed overnight to include the pandemic as the decision for the redundancy, as specified in the Respondent’s email to the Complainant of 29 April 2020, which stated that the decision to make the role redundant was made as a result of, “The current pandemic has caused no sales activity for the foreseeable future.” Whereas there had been no mention of the pandemic when the Respondent met the Complainant the day before to tell him he was being made redundant. Such a significant change, in such a short period of time, undermines the Respondent’s credibility.  This shift in the reason for the redundancy took place in the context of on-going negotiations between the Respondent and the Complainant regarding changes to the Complainant’s contract of employment.  I find the Complainant’s contract of employment (which the Respondent had been trying to renegotiate unsuccessfully for almost a year) was more at issue for the Respondent than the impersonal requirements of redundancy set out in the Panisi case above. It would seem the Covid 19 pandemic was used to bring the guillotine down of the contract negotiations.

It is noted that no evidence was adduced to support the contention that other employees had been made redundant in or around the time the Complainant was made redundant.

Having considered all the evidence presented, I find the Respondent fell well short of proving that a redundancy situation existed, and that redundancy was the main reason for the dismissal. This termination of employment lacked the impartiality required of redundancy.

 I am satisfied the Respondent’s decision to dismiss the Complainant was based on the Complainant’s resistance to change his contract of employment rather than on the job being redundant. I do not accept this was a genuine redundancy situation.

Regarding procedures, no evidence was presented of any redundancy procedure being used and it was clear from the evidence adduced at the hearing that the Complainant was selected without regard to any procedure or any methodology for selection for redundancy.  I accept the Complainant’s claim that he had no prior knowledge of his impending redundancy and he was given no opportunity to have other options considered in a meaningful way. I also note that the Complainant was not offered any appeal against this decision. This lack of procedure was admitted by the Respondent at the hearing.

Overall, I find that the Respondent failed to act reasonably as is required. The Respondent failed to make the Complainant aware that his job was at risk, failed to consult with the Complainant when deciding on the redundancy, failed to consider other options that might have prevented the redundancy going ahead and failed to give the Complainant a chance to appeal the decision to make him redundant. The fundamental right of the Complainant to fair procedures was totally absent in this case.

Having considered the totality of the evidence, I find that the Complainant was dismissed under the cloak (or perhaps face covering would be more apt a description in the circumstances) of redundancy because he would not accept a new contract of employment.

I am satisfied that the Complainant was dismissed for matters other than redundancy, therefore, the claim under the Unfair Dismissals Acts succeeds.

Redress:

Having found that the dismissal was unfair I must consider , in accordance with Section 7 of the Act, that where an employee is dismissed and the dismissal is an unfair dismissal, the employee should be entitled to redress consisting of either reinstatement, reengagement, or if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding an amount of 104 weeks’ remuneration in respect of the employment for which he was dismissed calculated) and is just inequitable having regard to all the circumstances. In accordance with Section 7(2)(a) of the Act, in determining the amount of compensation payable regard should be had to the extent (if any) to which the financial loss was attributable to an act, omission or conduct by or on behalf of the employer, and the measures (if any) adopted by the employee, or the case may be, his failure to adopt measure to mitigate his loss of earnings.

In this regard, the dismissal was entirely attributable to the employer. The Complainant has provided comprehensive evidence of his extensive efforts to find a new job.  Documentary evidence was provided demonstrating these efforts. Considering his specific skills and age I am satisfied that he would have experienced some difficulty in obtaining a similar role on a similar salary.

I decide that compensation is the most appropriate remedy and award the Complainant €118,732 to compensate him for his loss of earnings and other benefits. This compensatory payment is awarded in addition to the redundancy payment and the notice payment the Complainant has already received from his employer upon the termination of his employment.

The Complainant was unfairly dismissed. I award the Complainant €118,732.

The Complainant submits that he was entitled to eight weeks’ notice under his contract of employment and he should have received payment in respect of this notice and is due an additional two weeks’ salary.

The Respondent submits that the Complainant was paid his full statutory entitlements, and therefore nothing is owed.

The Act states:

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The Complainant has less than 10 years’ service with the employer and was therefore entitled to four weeks’ notice.  The Respondent has met its obligations under the Act.

I find the Act was not contravened.

The Complainant submits that he was entitled to holiday pay calculated by reference to the average pay that he received over the 13-week reference period immediately prior to the last day worked by him, as per Regulation 3 of the Organisation of Working Time Act (Determination of Pay for Holidays) Regulations 1997.  In this instance this the Complainant was underpaid by the amount of €2,397.60 in regard to his holiday pay entitlements. 

The Complainant submits that he is owed a payment based on commission as per the terms of his contract of employment of €2,426.00 based on the average monthly commission paid to him per month from 2017. 

The Respondent stated that if there was an error in the calculation of holiday pay, he would take it on board.

The Respondent stated that the Complainant was paid €5,240 in commission for the months of April and May and therefore is only due an additional payment of €2,426 if the notice period was deemed to be 8 weeks.

Holiday Pay Claim

Regarding normal weekly rate of pay, S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 states:

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

or

( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

I find the Complainant was underpaid by the amount of €2,397.60 in regard to his holiday pay entitlements.

Commission

Section 5 of The Payment of Wages Act 1991 states;

 (1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a)   the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    In the case of a deduction, the employee has given his prior consent in writing to it.

The Complainant was paid his commission for the months of April and May. He was not paid commission for the month of June.  However, his employment terminated on 9 June 2020, therefore he is entitled only to a pro rata payment based on the days he worked in June. I calculate this to amount to €727.79.

The complaint is well founded, and I order the Respondent to pay the Complainant €3,125.39.

The Complainant submits that he was underpaid by €36.00 in his statutory redundancy payment as based on an 8 weeks’ notice period.

The Respondent submits that 9 June 2020 was the date of termination and the calculations were correct.

I find the date of termination was 9 June 2020 and therefore the calculation of the lump sum is correct.

I do not allow this appeal.

Genuine redundancy, procedures, appeal, pandemic.