Complainant

Respondent

Parties

Stephen  Gillen

Trinsic Software Limited

Representatives

  Self-Represented

 No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057456-001

02/07/2023

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

CA-00057456-002

02/07/2023

The Complainant submitted that he worked for the Respondent as a Software Developer from the 1st October 2014 until the 23rd March 2023. The Respondent’s business ceased trading and the Complainant received no redundancy payment. The Complainant submitted that he was also owed outstanding wages for the months of January and February 2023, notice pay and outstanding holiday entitlement. The Respondent did not dispute the Complainant claims.

The Complainant stated in evidence that on the 23rd February 2023 he was informed that his employment with the Respondent was being terminated by reasons of redundancy and he was given four weeks’ notice. The Complainant was informed that all monies due and owing to him including his statutory redundancy, his salary for January and February 2023, his four weeks’ notice and outstanding holiday entitlement would be communicated to him in a follow up letter.

The Complainant was furnished with a follow up letter dated the 13th March 2023 setting out the final payment to be made to him. The said letter stated that “[a]s the company has no funds to pay the nett amount at this time, we regret to inform you will need to make a claim under the Redundancy Payment Scheme provided by the Government of Ireland.”

The Complainant entered into email communication with the Respondent regarding the outstanding monies due and owing to him. In June 2023 the Respondent indicated that there was a possibility that it might be in a position to discharge the monies due and owing to the Complainant however the Complainant’s statutory redundancy payment, his salary for the period from the 1st January 2023 to the 23rd March 2023, which includes his four weeks’ notice and holiday pay remain outstanding as at the date of the hearing.

The Respondent did not attend the hearing to give evidence. Post hearing the Respondent’s Director emailed the WRC to express his apologies for not attending the hearing and to confirm that there was no dispute that the monies claimed by the Complainant under the Redundancy Payments Acts 1967 (as amended) and the Payment of Wages Act 1991 were owed to the Complainant but that the Respondent did not have the funds to discharge what was owed.

CA-00057456-001

The Complainant provided evidence of his redundancy, evidence of his calculated entitlement and evidence in support of his contention that the statutory redundancy payment was never made to him.

This complaint is for a statutory lump sum payment under section 39 of the Redundancy Payments Acts 1967 (as amended).  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must -

(1)    have at least 2 years’ continuous service;

(2)    be in employment which is insurable under the Social Welfare Acts;

(3)    be over the age of 16;

(4)    have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and

(5)    not have received a lump sum payment.

Section 7(2) of the Redundancy Payments Act 1967 (as amended) states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(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…

Having heard the evidence, I am satisfied the Complainant’s situation is in compliance with section 7(2)(a) above.  I am that satisfied the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967 (as amended).  I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his redundancy as at the date of hearing. The calculation of gross weekly pay is subject to a ceiling of €600.00.  The calculation of the lump sum is a matter for the relevant department.

CA-00057456-002

The complaint submitted is that the Respondent unlawfully deducted wages due to the Complainant for his salary for January and February 2023, his four weeks’ notice pay and outstanding holiday entitlement. The complaint was submitted to the WRC on the 2nd July 2023.

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provided the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

The above definition includes pay, notice pay and holiday pay. 

Sections 5(1) and 5(6) of the 1991 Act provides:

5.— (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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

The Complainant in his complaint form and oral testimony stated that he was given notice of redundancy on the 23rd February 2023 and that his employment with the Respondent ended on the 23rd March 2023.  He was not paid his salary for the period from the 1st January 2023 to the 23rd  March 2023, which included his four weeks’ notice. He was also owed outstanding holiday pay.

I found the Complainant to be a credible witness and based on his uncontested testimony I am satisfied that wages were properly payable to him for the period from the 1st January 2023 to the 23rd  March 2023, which included his four weeks’ notice, and that he was owed outstanding holiday pay.

The Complainant claimed €7,200 gross in respect of his outstanding pay, €3,692.00 gross in respect of notice pay and €1,000 in respect of holiday pay.  His salary was €48,000 per year gross which is less than €1,000 per week. The Complainant accepted at the hearing that his weekly wage was €923.08 gross. 

I direct the Respondent to pay to the Complainant the following sums for the unlawful deduction of wages properly payable to the Complainant: the sum of €6,830.79 gross in respect of his salary for the period from the 1st of January 2023 and the 23rd February 2023, the sum of €3,692.32 gross in respect of four weeks’ notice pay for the period from the 23rd February 2023 to the 23rd March 2023 and the sum of €1,000 in respect of outstanding holiday pay.

I find that the Complainant is entitled to be paid the total sum of €11,523.11 gross.

CA-00057456-001

Having considered all the written and oral evidence presented in relation to this matter my decision is to allow the Complainant’s appeal against the failure of his employer to pay a redundancy.  I decide the within complaint is well-founded and I decide the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act 1967 (as amended) based on the following criteria:

Date of Commencement: 1st October 2014

Date of Notice of Termination: 23rd February 2023

Date Employment Ended: 23rd March 2023

Gross Weekly Wage: €923.08. This figure is capped at the maximum figure of €600 as his weekly wage exceeded that sum.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00057456-002

I find that the wages claimed by the Complainant were properly payable to him. He is due payment for his salary for the period from the 1st January 2023 to the 23rd February 2023, 4 weeks’ notice pay and accrued annual leave entitlement. I decide the complaint concerning the unlawful deduction of wags due is well founded and I direct the Respondent to pay to the Complainant compensation of €11,523.11 gross.  

Redundancy Payments Act – statutory redundancy unpaid – appeal allowed – unlawful deduction – wages – holiday pay – notice