Complainant

Respondent

Parties

Matthew  Walsh

Melia's Butchers

Representatives

  Self

 No Appearance

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-00051380-001

27/06/2022

The Complainant was employed by the Respondent as a butcher from on or about the 1st of February 1993 until his employment ended with the closure of the Respondent’s business in November 2021. 

His sole claim relates to an alleged unlawful deduction from his wages in relation to unpaid minimum notice in respect of which he seeks compensation pursuant to Section 6 of the Payment of Wages Act 1991.

The matter was heard before me on the 10th of January 2023 by way of online remote hearing. The Complainant attended and represented himself.

There was no appearance by or on behalf of the Respondent. The Respondent having been duly notified of the time, date and venue of the adjudication hearing, I proceeded in the absence of the Respondent. 

The Complainant represented himself at the Adjudication Hearing. The Complainant gave evidence under Affirmation.

The Complainant commenced employment with the Respondent on or about the 1st of February 1993. He worked as butcher. On or about Tuesday the 2nd of November 2021 the Respondent e-informed the Complainant that the business of the Respondent was to close and that his employment would be terminated by reason of redundancy. To the best of his recollection, the Complainant’s last day working for the Respondent was Saturday the 6th of November 2021. He did not receive any payments at that time in respect of redundancy or minimum notice.

Following the closure of the business, the Respondent assured the Complainant that all necessary paperwork had been submitted to process his redundancy and minimum notice entitlements. The Complainant relied on this assurance and took no further steps at that time. However, in June 2022 he received a telephone call from the Redundancy and Insolvency Payments Unit of the Department of Social Protection and he was told that his weekly earnings had been overstated and that his redundancy entitlement (and no tother entitlement) would be calculated using a figure of €547 as the weekly wage multiplier. In the same conversation the Complainant learned for the first time that no documentation relating to his unpaid minimum notice had been submitted to the Redundancy and Insolvency Payments Unit and he was informed that he would not be receiving a payment from that Unit in respect of his minimum notice entitlement on the termination of his employment (which was of more than 17 years duration).  The Complainant did receive his redundancy lump sum entitlement from the Unit and the same was calculated on the basis of a weekly wage of €547 per week which was calculated by the Unit based on the documentation submitted by the Respondent including wages records. The Complainant did not receive a payment from any source in respect of his minimum notice entitlement.

The Complainant was most surprised and disappointed to learn that no documentation regarding his minimum notice entitlement had been submitted due apparently to a clerical error made by the Respondent. As soon as the Complainant became aware of this situation, he lodged the present claim which was received by the WRC the 27th of June 2022.

The sole claim made in the present claim is that the Respondent failed to pay to the Complainant his statutory minimum notice of 8 weeks wages and this failure constituted an unlawful deduction within the meaning of that term in the Payment of Wages Act 1991 as amended.

As the Complainant’s claim form was submitted beyond the normal time limit of six months from the date of the alleged deduction, the Complainant made an application based on the foregoing circumstances, to extend the time for the making of the present application beyond six months from the date of the alleged deduction. The Complainant relied on the assurances given to him by the Respondent that his minimum notice payment was being processed and the fact that he had no way of knowing whether this was so or not until he was contacted in June 2022 by “the Redundancy Section” when he then learned that no paperwork in respect of the payment of minimum notice had been received due to a clerical error on the part of the Respondent. On receipt of this information the Complainant said that he acted promptly, i.e. that same month, June 2022, by lodging the WRC claim form initiating the present application. The Complainant submitted that such circumstances constituted a reasonable cause for the failure to present his claim within six months of the deduction.

There was no appearance by or on behalf of the Respondent.

Section 41 (6) of the Workplace Relations Act 2015 requires the presentation of a complaint such as the present claim for relief under Section 6 of the Payment of Wages Act 1991 within six months of the date of the unlawful deduction which, in the present case, would have required the presentation of the claim by May of 2021. However, notwithstanding the expiry of the initial time limit of six months I have a discretion to extend that time limit to a maximum of 12 months from the date of the alleged deduction pursuant to Section 41 (8) where the Complainant can demonstrate that his failure to present the claim within six months was “due to reasonable cause”.

I accept the uncontroverted evidence given by the Complainant that he was given assurances by the Respondent, shortly after his employment ended with the closure of the Respondent’s business, that he would receive his entitlements to a payment of 8 week’s wages in lieu of notice in accordance with his entitlements under the Minimum Notice Act 1973 (as amended). I am further satisfied that it was reasonable for the Complainant to rely on these assurances such that he did not deem it necessary to initiate a formal claim to the WRC until he received a telephone call from the Redundancy and Insolvency Payments Unit of the Department of Social Protection informing him that an error had been made by the Respondent in processing his entitlements such that no application had been made in relation to his minimum notice entitlement. When the Complainant was alerted to the error in June 2022, he instituted the present claim that same month, beyond six months but within 12 months from the date of the unlawful deduction the subject matter of the claim. I am satisfied on the evidence presented that the failure on the part of the Complainant to present the present claim application pursuant to Section 6 of the Payment of Wages Act 1991 within the six-month time limit set out Section 41 (6) of the Workplace Relations Act 2015 was due to reasonable cause within the meaning of that term in Section 41 (8) of the Workplace Relations Act 2015 and in circumstances where the claim was presented within 12 months of the alleged deduction, I am prepared to extend the time for the making of the present claim.

I am further satisfied that the Complainant was not afforded the minimum notice or payment in lieu thereof to which he was entitled under the Minimum Notice and Terms of Employment Act 1973 (as amended) and that his service, being in excess of 15 years duration, entitled the Complainant to a payment in lieu of notice representing 8 weeks’ normal remuneration.

Based on the weekly earnings figure of €547 gross per week gross (which the Complainant, in his evidence, said was assessed by the Redundancy and Insolvency Payments Unit of the Department of Social Protection) which the Complainant accepted was a correct figure, the Complainant was entitled to a payment in the sum of €4,376 and the failure on the part of the Respondent to pay the said sum constituted an unlawful deduction within the meaning of that term in Section 5 of the Payment of Wages Act 1991 and I direct the Respondent to make this payment to the Complainant.   

CA-00051380-001

The Complaint pursuant to Section 6 of the Payment of Wages Act 1991 is well-founded and the Respondent is directed to pay the sum of €4,376 to the Complainant subject to taxation and the normal statutory deductions.  

Payment of Wages Act 1991, Sections 5 and 6 – Time Limits – Workplace Relations Act 2015 – Section 41 (6) and Section 41 (8) – Reasonable Cause – Minimum Notice