Complainant

Respondent

Parties

Ken  Tynan

Morrison Data Services Ltd

Representatives

 Self-represented

Internal HR

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050863-001

24/05/2022

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

CA-00050863-002

24/05/2022

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

CA-00050863-003

24/05/2022

The Complainant worked for the Respondent company for just under 6 years. It is common case that the relevant dates for the purposes of redundancy are as follows:

·       Commencement of employment: 25/04/2016

·       Termination of employment: 31/03/2022

It is common case that a redundancy payment is due and owing to the Complainant.

It is common case that the Complainant’s weekly wage was an average of €428.75 per week (based on an average of a gross monthly wage of €1,715.)

The employer submitted that, based on the dates set out above, the Complainant had had 5.93 years’ service, which equates to 12.88 weeks’ pay as per the redundancy calculator, which it submitted worked out at €5,522.30 due and owing to the Complainant. The figure of 12.88 weeks was accepted by the Complainant.

The Complainant submitted that he received one week’s notice pay, a fact accepted on behalf of the Respondent. Based on having more than 5 years’ service, the Complainant is entitled to a minimum of four weeks’ notice pay as per the Minimum Notice and Terms of Employment Act 1973, based on the length of the Complainant’s service which accepted as common case, by both parties.

In response to a query from the Adjudication Officer, the Complainant clarified that he did not believe any unpaid annual leave was outstanding to him. The Respondent concurred.

The Complainant submitted that he has dyslexia, and his wife assisted him in the presentation of his case.

The Complainant gave evidence on his own behalf.

He outlined that he had initially worked with another company in 2016, and some time thereafter – the Complainant was unsure exactly when (2017, 2018 perhaps), his job transferred over to the Respondent company.

He explained that he continued in employment with the Respondent company until his employment ended on 31/03/2022.

He outlined the background to this – the Respondent company had been fulfilling a long-term contract, which was put out to tender again for renewal, and on this occasion the Respondent company did not get the contract.

He said that the workers had first heard prior to Christmas 2021 that the contract was going out to tender again, and that the Respondent company was hoping it would get it. The company did not get the contract.

The Complainant said that in March 2022, he was given one week’s notice that his job was ending and was required to hand back in his tools and uniform. He was paid one week’s notice pay.

He said that he received no redundancy payment from the Respondent.

On cross-examination:

It was put to the Complainant that his start date with MeterU was 25/04/2016, that his job transferred to the Respondent company on 24/01/2017.

In response to a query from the Adjudication Officer, the Respondent was unable to clarify the nature of the transfer (i.e. was it a TUPE or not) but the Respondent company accepted 25/06/2016 as the commencement date of the Complainant’s employment with the Respondent company, and submitted that the point was therefore moot.

It was put to the Complainant that he had started employment on a “fixed-term, casual, Irish contract of three (3) months”, which he accepted.

It was put to the Complainant that the termination date of his employment was 31/03/2022, and that his service was therefore “just shy of six years”, which he accepted.

The Respondent was represented by its internal HR/Employee Relations person, Mr. Scott Davis, who cross-examined the Complainant and made submissions on behalf of the Respondent.

The Respondent was unable to clarify, in response to a query from the Adjudication Officer, whether the transfer which took place in 2016 was a TUPE or not but suggested that he did not believe that it was but was unsure. He submitted, however, that the Respondent was accepting 25/04/2016 as the date of commencement of the Complainant’s employment with the Respondent.

Mr. Davis submitted on behalf of the Respondent that it was “confused at our attendance in this case.” He said that it was the Respondent’s position that the Complainant’s start date was 25/04/2016 and his termination date was 31/03/2022, which constituted 5.93 years of service, that the Respondent company had been able to, in relation to those 72 months, identify 65 months’ worth of payslips, and he submitted that the Complainant had been very helpful in that regard.

He submitted that the Complainant’s average weekly wage was: €428.75, based on the 65 months of payslips, which was based on an average monthly salary of €1,715.

He submitted that that equated to 12.88 weeks’ pay (including the bonus week) for the purposes of redundancy payment calculation, which he submitted equated to €5,522.30.

The Complainant’s wife concurred with the calculation of 12.88 weeks.

In response to a query from the Adjudication Officer, Mr. Davis concurred with the Complainant that he had been paid one (1) week’s notice pay. They further concurred that no payment in respect of untaken annual leave was outstanding.

In his closing submission, Mr. Davis submitted that efforts had been made by the Respondent to settle the matter, both through the WRC and outside of it. The Adjudication Officer, at the hearing, clarified that WRC mediation is a voluntary process, and that it is a confidential process, and that she could not be on notice of anything in respect of a WRC mediation, as the Adjudication Officer hearing the case. She further clarified for the Complainant’s wife, Mrs. Tynan, that settlement efforts outside the WRC are a matter for the parties, and again, not something of which the Adjudication Officer hearing the case can have knowledge.

Mr. Davis submitted that he would be seeking his costs from the point of the offer onwards, both in respect of his travel costs to Ireland to attend the hearing and in respect of the work that had been done on the file since the offer was made. The Adjudication Officer, at the hearing, clarified that the WRC has no jurisdiction with respect to costs.

I find for the Complainant.

CA-00050863-001 – Notice Pay. I find that this claim is well founded. I find that the Complainant is entitled to statutory notice pay in the amount of four weeks’ pay under the Minimum Notice and Terms of Employment Act 1973 as the Complainant had between five and ten years’ service, and instead received only one week’s notice pay. Therefore, three weeks’ notice pay remain outstanding and owing.

CA-00050863-002 – Redundancy Pay. I find that this claim is well-founded. I find that the Complainant is entitled to statutory redundancy pay and did not receive any.

CA-00050863-003 – This is a duplicate claim.

CA-00050863-001 – Notice Pay. I direct the Respondent to pay the Complainant the amount of €1,286.25 (€428.75 x 3 weeks) within 42 days of the date of this decision.

CA-00050863-002 – Redundancy Pay. I direct the Respondent to pay the Complainant the amount of €5,522.30  within 42 days of the date of this decision.

CA-00050863-003 – This is a duplicate claim. I find that this claim is not well-founded

Redundancy Payment; Minimum Notice;