Complainant

Respondent

Parties

Jean  McCann

Clockbell Ltd

Representatives

  Self-represented

Mr Seamus Farrell, Accountant

Act

Complaint Reference No.

Date of Receipt

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

CA-00056145-001

18/04/2023

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

CA-00056145-002

18/04/2023

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

CA-00056145-003

18/04/2023

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

CA-00056145-004

18/04/2023

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

CA-00056145-005

18/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056145-007

18/04/2023

The Complainant worked part-time for the Respondent from 9 October 2020 until the termination of her employment on 4 January 2023 when the Respondent business ceased trading. The Respondent submits that the Complainant received all statutory entitlements owing to her.

The Complainant’s weekly hours of work varied but were approximately 11 hours per week. The Complainant was informed at a staff meeting on 4 January 2023 that the business was closing with immediate effect. The Complainant referred a complaint to the WRC on 18 April 2023 claiming that she was due holiday pay, notice and a redundancy payment.

At the outset of the hearing the Complainant confirmed that since the referral of her complaint to the WRC she received a lump sum payment from the Respondent of approximately €867. The Complainant submitted that she has no idea what this amount was in respect of as she did not receive a breakdown of the amount paid or a payslip, despite repeated requests for the latter. The failure of the Respondent to give a pay slip left the Complainant unsure which of her statutory entitlements she had received.

The Complainant submits that she is due annual leave accrued, but not taken, for the last two weeks of December 2022 and the first week of January 2023. The Complainant submitted that she did not receive notice or payment in lieu of notice on termination of her employment and that she is unaware if she received payment in lieu of holidays and notice within the lump sum received. The Complainant also submitted she is entitled to a redundancy payment but is unsure if that payment was included within the €867 sum received in June 2023.

Following the giving of evidence by Mr Farrell on behalf of the Respondent, the Complainant accepted the breakdown of the payment as outlined by Mr Farrell at the hearing, including her weekly rate of pay and her employment start and finish dates. She added that had she received a payslip she would have been in a better position to know whether her entitlements had been paid, and therefore could have avoided a WRC adjudication hearing.

Mr Farrell is an accountant for a wider group of companies (which included the Respondent business). The Respondent requested him to attend the WRC hearing into this complaint to give evidence on the Respondent’s behalf. He explained to the hearing that he was unaware that the Complainant was not furnished with a final payslip and a breakdown of the lump sum paid to her on 26 May 2023. Mr Farrell provided the hearing with a document which outlined the breakdown of the lump sum payment and related details. Mr Farrell explained the breakdown as follows:

Total payment to the Complainant: €835.83. Date of payment: 26 May 2023. Complainant’s total gross remuneration in 2022: €5,612.23. Complainant’s gross average weekly earnings: €107.93. Statutory minimum notice due: 2 weeks. Pay in lieu of notice: €215.86 Holidays accrued but not taken: 2.11 hours. Payment in lieu of annual leave accrued but not taken on termination: €26.38.

Redundancy payment: €593.60, calculated as follows: Service: 2.25 years Weekly wage: €107.93.

The Respondent submits that all statutory payments due to the Complainant were paid to her on 23 May 2023 and therefore the Complainant was owed nothing further.

Findings

CA-00056145-001

This complaint under the Payment of Wages Act 1991 was withdrawn at the outset of the hearing.

CA-00056145-002

It is common case that the Respondent has ceased trading and that the Complainant’s position was made redundant within the meaning of the Redundancy Payments Acts 1967-2022. The parties were agreed on the Complainant’s employment start and end dates and Complainant’s weekly wage. The Complainant accepts that she was paid a lump sum payment of €835.83 on 26 May 2023, which included the redundancy payment owing to her. I find the Complainant received the redundancy payment owing to her, and therefore this complaint is not well-founded.

CA-00056145-003

Section 4(1) of the Minimum Notice and Terms of Employment Act 1994 (“the 1994 Act”) provides:

“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.”

Section 4(2) of the 1994 Act provides:

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

(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 . . . .”

I find the Complainant was entitled to two weeks statutory notice in accordance with s 4(2)(b) of the 1994 Act. I am satisfied that the lump sum payment received by the Complainant on 26 May 2023 included two weeks’ pay in lieu of notice (€215.86). Therefore, I find this complaint is not well-founded.

CA-00056145-004

The Complainant was unsure why she referred several complaints under the Minimum Notice and Terms of Employment Act 1994 and submitted that it was probably in relation to the accrual of holidays during the notice period. This issue will be considered under CA-00056145-007, and therefore I find this complaint is not well-founded (being a duplicate complaint).

CA-00056145-005

This complaint under the Minimum Notice and Terms of Employment Act 1994 was withdrawn at the outset of the hearing.

CA-00056145-007

The Complainant submitted that she is due payment for annual leave accrued during the last two weeks of December 2022 and the first week of January 2023 before the Respondent closed the business. The Respondent submitted that the Complainant had accrued 2.11 hours, for which she had been paid €26.38 within the lump sum paid to her on 26 May 2023.

Section 19(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to —

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks . . . . ”

Section 23 (1)(a) of the 1997 Act provides:

“Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

I am satisfied that the Complainant had accrued 2.11 hours annual leave based on 8% of the hours worked in the last three weeks of her employment and that the Complainant received a payment of €26.38 cesser pay in lieu of annual leave accrued but not taken on termination of employment. Therefore I find this complaint is not well-founded.

Conclusion

I agree with the Complainant’s submission that it is regrettable that the Respondent did not provide the Complainant with a final pay-slip and a breakdown of the lump sum paid to her on 26 May 2023 as this would have avoided the Complainant having to attend an adjudication hearing.

CA-00056145-001

This complaint under the Payment of Wages Act 1991 was withdrawn at the outset of the hearing.

CA-00056145-002

I decide that the Complainant received the redundancy payment owing to her, and I disallow the appeal.

CA-00056145-003

I decide that this complaint under the Minimum Notice and Terms of Employment Act 1994 is not well-founded.

CA-00056145-004

I decide that this complaint under the Minimum Notice and Terms of Employment Act 1994 is not well-founded.

CA-00056145-005

This complaint under the Minimum Notice and Terms of Employment Act 1994 was withdrawn at the outset of the hearing.

CA-00056145-007

I decide that this complaint under the Organisation of Working Time Act 1997 is not well-founded.

Redundancy payment. Notice. Annual Leave.