PWD2346

Appeal of Adjudication Officer Decision No's: ADJ-00034002 (CA-00048290-001)

BACKGROUND:
This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on 23 November 2023 in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision:

DECISION:

This is an appeal on behalf of Tridium Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00034002, dated 29 June 2022) under the Payment of Wages Act 1991 (‘the Act’). The Complainant in this case is Mr Ken O’Toole, a former employee and director of the Respondent company. The Complainant was successful at first instance and the Adjudication Officer awarded him compensation of €11,500.00 (net) under the Act. The Respondent’s Notice of Appeal was received in the Court on 27 July 2022. The Court heard the appeal in a virtual courtroom on 23 November 2023, having previously postponed the hearing on a number of occasions at the Complainant’s request.

Brief Summary of the Factual Background

The Respondent was incorporated in July 2020. At that time, its four directors – including the Complainant – were each employed elsewhere. The Complainant initially began working on a part-time basis for the Respondent in early autumn 2020 and subsequently – in or around 18 October – he became a full-time employee. The four directors agreed that they would receive no salaries or emoluments from the company until such time as the company was on a sound financial basis. Mr JD was the last of the directors to leave his former employment to commence working for the Respondent. He did so in February 2021 and was paid a salary from that time forwards. It appears that all four directors – including the Complainant – were paid a monthly salary each month from March onwards in the amount of €4,050.00 gross. The Complainant was dismissed from his employment on 17 June 2021. At the end of June 2021, the remaining three directors resolved to pay themselves a bonus of €20,000.00 each.

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 24 January 2022.

The Claim

The Complainant told the Court that his claim under the Act is for €20,250.00 being the amount of wages he believes are due to him for the period October 2020 to February 2021, inclusive. He submits that he never agreed to work without payment for the Respondent and that the agreement between the directors was that they would each be re-imbursed for any wages they had foregone when the company was in funds. Finally, he submits that the arrears of wages he now claims fell due to him on 31 July 2021.

The Respondent’s Position

It is submitted on behalf of the Respondent that the within complaint was referred outside of time and that the Complainant had never made reference to a payment of wages falling due to him on 31 July 2021 prior to the hearing of the within appeal and was doing so now merely as device to counteract the Respondent’s submission that his claim was referred outside of time. It further submits that there is no evidence before the Court of any agreement in the terms alleged by the Complainant whereby the Respondent’s directors agreed to retrospectively pay themselves wages for the period up until 1 March 2021. Furthermore, according to Mr O’Riordan, Solicitor for the Respondent, the Complainant has not provided the Court with any explanation as to what the payment he now claims consists of.

Discussion and Decision

The within complaint under the Act was received by the Workplace Relations Commission on 24 January 22. Therefore, the period comprehended by it is 25 July 2021 to 24 January 2022. The Complainant’s employment with the Respondent had ceased on 17 June 2021.

Furthermore, the Complainant’s submission to the Court consisted of a series of assertions unsupported by any documentary evidence. It is also the case that the Complainant appeared to change his story in relation to several matters at different stages of the litigation and even in the course of the hearing of the appeal before this Court. For this reason, the Court finds that the Complainant’s account of events is lacking in credibility.

Specifically, there is no evidence whatsoever that a payment of €20,250.00 (or any other amount) fell due to the Complainant on 31 July 2021, some six weeks after his employment with the Respondent had been terminated. There is a mere assertion in this regard by the Complainant. That assertion is made all the more incredible by the fact that it appears not to have been made in the course of the hearing before the Adjudication Officer.

For the foregoing reasons, the Court finds that the Complainant has failed to adduce any credible evidence in support of his claim under the Act. The Respondent’s appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
12 December 2023	Deputy Chairman