PWD2247

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00029095, CA-00038757-002

BACKGROUND:

2. This is an appeal by Mr Seán Fitzgerald (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029095/CA-00038757-002, dated 3 February 2022) under the Payment of Wages Act 1991 (‘the Act’). Notice of Appeal was received on 8 March 2022. The Court heard the appeal in Limerick on 5 October 2022




DETERMINATION:

The Complainant was employed as a Recruitment Consultant by Wallace Myers International Limited (‘the Respondent’) between 1 April 2019 and 12 June 2020, the date on which his dismissal by reason of redundancy took effect. His basic annual salary was €45,000.00, in addition to which he was also paid commission. He worked in the Respondent’s Accounting and Finance Recruitment Division. This was the only Division in the business that was staffed by more than one consultant. It was staffed by a manager and three consultants.

It is common case that there was a very significant downturn in the Respondent’s business following the outbreak of the Covid-19 pandemic in March 2020 as the majority of the Respondent’s business clients delayed or ceased recruitment activity. The Respondent placed all of its eighteen staff on temporary lay-off with effect from 23 March 2020. This was rescinded following the introduction of the Temporary Wage Subsidy Scheme (‘TWSS’) on 26 March 2020. The Respondent paid the Complainant the TWSS payment plus €1,600.00 for the month of March 2020, the TWSS payment plus €300.00 in April and the TWSS only for the remainder of his employment.

By letter dated 22 May 2020, the Respondent put all members of the Accounting and Finance Team on notice of potential redundancy. The Complainant was invited to attend a meeting (by Zoom) on 25 May 2020 “to discuss the situation in more detail and how it will affect [him]”. Following the aforementioned meeting, the Complainant was notified in writing that his position was at risk of redundancy “due to lack of business activities”. He was also provided with minutes from the meeting of 25 May 2020 and invited to a further meeting arranged for 28 May 2020 at which he would have an opportunity to make submissions regarding alternatives to redundancy. The Complainant was advised again of the Respondent’s financial situation and the downturn in its business at this meeting. He was also advised that no decision had been taken at that stage in relation to his future employment.

A further meeting took place with the Complainant on 2 June 2020, via Zoom. The Complainant was once again advised of the downturn in the Respondent’s business in general and the business being handled by its Accounting and Finance Team, in particular. He was also advised that the consultation process would conclude by 5 June 2020 and a decision would then be taken in relation to redundancies. At the outcome meeting on 5 June 2020, the Complainant was advised that no means of avoiding his redundancy had been identified and that his redundancy would take effect, therefore, on 12 June 2020. Formal written notice of redundancy issued to the Complainant on 5 June 2020 in which he was also advised of his right to appeal the decision to dismiss him. The Complainant availed himself of the right of appeal. The appeal was heard by an external Human Resources Consultant on 18 June 2020 via telephone. The external Consultant issued his appeal outcome letter upholding the Complainant’s dismissal by reason of redundancy on 17 July 2020.

It is common case that a second consultant in the Respondent’s Accounting and Finance Team was also made redundant on 12 June 2020. A third consultant in the Team resigned his employment in August 2020, leaving only the Manager of the Team in situ. None of the three consultants had been replaced as of the date of hearing of the within appeal.

The Complainant secured alternative employment and commenced his new job on 14 September 2020, the starting salary for which was €47,000.00 per annum.

Claim under the Act

The Complainant submits that the Respondent has made an unlawful deduction from his wages during the period 26 March 2020 (from which date he was placed on TWSS) and 12 June 2020 (the date on which he was dismissed by reason of redundancy). He further submits that he had not been placed on lay-off during the period in question and continued to be available for work and did, in fact, perform work throughout that time. The Complainant has calculated his total loss for the purposes of the within complaint at €5,835.69.

The Respondent submits that it operated the TWSS fully and in accordance with the rules of the Scheme’s guidelines as determined by Revenue and that the Complainant acknowledged in writing that this was the case. It further submits that the Complainant consented to participate in the TWSS and that it did not direct the Complainant to work to his contract nor to perform work for any minimum number of hours per week during the period he was in receipt of TWSS payments. The Respondent’s CRM system, Bullhorn, records an 80% fall-off in the Complainant’s work-related activities during the period relevant to his complaint under the Act compared to activity levels in, for example, February 2020.

Finally, it is submitted by the Respondent that it paid the Complainant a top-up payment of €1,600.00 in March 2020 and €300.00 in April 2020.

Decision

The Court finds that the complaint is not well-founded. The Complainant consented to his participation in the Scheme as an alternative to being placed on lay-off. He was not obliged to perform to his contract during the period he availed himself of TWSS.

The appeal, therefore, fails and the decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Alan Haugh
IK	______________________
8 November 2022	Deputy Chairman