ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044132
Parties:
| Complainant | Respondent |
Parties | Jim O' Sullivan | Greenway Couriers Limited Greenway Couriers |
Representatives | John O' Keeffe John O' Keeffe & Co. Solicitors | Thomas Dowling Hogan Dowling McNamara Solicitors LLP |
Complaint(s):
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-00054763-001 | 30/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054763-003 | 30/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054763-004 | 30/01/2023 |
Date of Adjudication Hearing: 23/05/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in public, and that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
No objections to the public nature of the Hearing or Findings were raised.
Background:
The Complainant commenced employment with the Respondent on 10 October 2022, as National Sales Manager. His gross weekly pay was €865.39. His employment ended on 25 November 2022. A complaint was received by the WRC on 30 January 2023. In advance of the hearing correspondence was received by the WRC from Carey & Associates stating that Mr William Carey had been appointed as Liquidator to the Respondent Company on 13 March 2023. The Complainant gave evidence under Affirmation.
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CA – 00054763-001 under Section 6 of the Payment of Wages Act, 1991.
Summary of Complainant’s Case:
Under Affirmation, the Complainant stated that he was told, out of the blue, that he was going to be dismissed and that because of the suddenness of the dismissal he would be paid a week’s pay. The Respondent gave a commitment to this. Although his expenses and holiday pay were paid by the Respondent, the Complainant was never paid for the week’s “Gardening Leave” he had taken. The Complainant believes he is rightly due one week’s pay for the week he was on “Gardening Leave”, as promised. |
Summary of Respondent’s Case:
Neither the Liquidator nor the Respondent attended the hearing. |
Findings and Conclusions:
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 deduction which is the subject of this complaint is clearly not required by statute, did not constitute a term of contract nor was there prior consent. I believe the evidence of the Complainant in this matter. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I direct the Respondent/Liquidator to pay the Complainant the sum of €865.39. |
CA – 00054763-003 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant stated that although he received a Letter of Offer on 3 October 2022, it was the only document he received from the Respondent. He was never given a contract, despite requesting one on at least five different occasions. He was never given a statement in writing of his terms of employment. |
Summary of Respondent’s Case:
Neither the Liquidator nor the Respondent attended the hearing. |
Findings and Conclusions:
Section 3 of the Act states: “(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment….” Based on the evidence of the Complainant I am satisfied that the Complainant has not been provided with the information as required by the Act. On the uncontested evidence of the Complainant, I find that the Respondent has breached Section 3 (1) of this Act. I note that Hedigan J. in the High Court case Arturs Valpeters v Melbury Developments Ltd 2009 MCA stated, "An award of compensation can be made pursuant to Section 3 and 7(2) of the Terms of Employment (Information) Act 1994 in the absence of any loss accruing to an employee from the failure of an employer to provide a contract of employment to an employee." I note that Section 7 (2) (d) of the Act states, "compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks' remuneration".
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the complaint is well founded and that the Respondent/Liquidator should pay the Complainant compensation of €865.39. |
CA – 00054763-004 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant stated that although he received a Letter of Offer on 3 October 2022, it was the only document he received from the Respondent. He was never given a contract, despite requesting one on at least five different occasions. He was never given a statement in writing of his core terms of employment in writing. |
Summary of Respondent’s Case:
Neither the Liquidator nor the Respondent attended the hearing. |
Findings and Conclusions:
Section 1A of the Act states: “Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,….” Based on the evidence of the Complainant I am satisfied that the Complainant has not been provided with the information as required by the Act. On the uncontested evidence of the Complainant, I find that the Respondent has breached Section 3 (1) of this Act. I note that Hedigan J. in the High Court case Arturs Valpeters v Melbury Developments Ltd 2009 MCA stated, "An award of compensation can be made pursuant to Section 3 and 7(2) of the Terms of Employment (Information) Act 1994 in the absence of any loss accruing to an employee from the failure of an employer to provide a contract of employment to an employee." I note that Section 7 (2) (d) of the Act states, "compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks' remuneration". |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the complaint is well founded and that the Respondent/Liquidator should pay the Complainant compensation of €865.39. |
Dated: 1st August 2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Pay, terms of employment, |