ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038858
Parties:
| Complainant | Respondent |
Parties | Elena Bondareva | Avia Capital Leasing Limited Leasing |
Representatives | Self | No Appearance |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00050142-004 | 01/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00050142-005 | 01/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00050142-006 | 01/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050142-007 | 01/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00050142-008 | 16/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00050142-009 | 16/09/2022 |
Date of Adjudication Hearing: 10/05/2023
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014 and Section 41 of the Workplace Relations Act 2015 and 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.
The matter was heard before me at the offices of the Workplace Relations Commission offices at Lansdowne House, Dublin on the 10th of May 2023.
The Complainant appeared and represented herself at the adjudication hearing. There was no appearance by or on behalf of the Respondent. Having ascertained that the Respondent was duly notified of the time, date and venue for the adjudication hearing, I proceeded with the hearing in the absence of the Respondent.
Background:
The Respondent is Aviva Capital Leasing Limited whose registered offices are at Unit 3B, The Courtyard, Carmanhall Road, Sandyford, Dublin 18.
The Complainant was employed by the Respondent as an administrator from the 1st of March 2014 until her employment was terminated with effect from the 29th of April 2022. The Complainant alleged that she was not paid her contractual salary for two months prior to the cessation of her employment. She alleged that she was owed holiday pay. She sought compensation for unfair dismissal and/or by way of statutory redundancy lump sum. Although she received a contract of employment she alleged that the same did not comply I full with the Terms of Employment (Information) Act 1994
The Complainant made the following claims:
- CA-00050142-004 - Unfair Dismissal Claim under Section 8 of the Unfair Dismissals Act 1977
- CA-00050142-005 – Claim made pursuant to Section 6 of the Payment of Wages Act, 1991.
- CA-00050142-006 Claim made pursuant to Section 6 of the Payment of Wages Act, 1991
- CA-00050142-007 – Claim made pursuant to Section 27 of the Organisation of Working Time Act 1997
- CA-00050142-008 claim for a redundancy lump sum calculated in accordance with her statutory entitlements pursuant to the Redundancy Payments Acts 1967.
- CA-00050142-009 claim pursuant to Section 7 of the Terms of Employment (Information) Act 1994
Due to duplication as between the Payment of Wages Claims and the Organisation of Working Time Act claim, certain claims were withdrawn as specified below and all claims in respect of unlawful deductions were processed under reference CA-00050142-005.
The Complainant elected to proceed only with the claim under the Redundancy Payments Act, CA-00050142-008 and the Unfair dismissal claim CA-00050142-004, was withdrawn.
Summary of Complainant’s Case:
The Complainant represented herself at the Adjudication Hearing. She gave her evidence on affirmation which evidence was not controverted. The Complainant was employed by the Respondent as an administrator pursuant to a contract of service. Her commencement date was the 1st of March 2014. The Complainant’s annual salary was €30,000 per annum Her gross monthly salary was €2,500 based on a 37.5 hour working week Her weekly gross salary was €576.92 Her daily rate of pay was €82.19 Her contractual holiday entitlement was 20 days per annum – 1.66 days per month. On the 14th of April 2022 the Respondent approached the Complainant and informed her that the business of the Respondent was ceasing altogether. The Respondent made an offer to the Complainant of a voluntary redundancy or severance package which, if accepted, would be paid in Russian roubles directly into a bank account in Russia. The Complainant was given to understand that the Respondent was unable to pay the Complainant in euros as it was unable to access its assets based in the European Union due to political developments. The Complainant refused this offer. She continued to work as normal until her employment ceased altogether on the 29th of April 2022. The Complainant understood that her salary for the months of March and April 2022 would be or had been paid but she did not receive any remuneration for these months. She said that she worked for these two months, and she was not paid. She also said that she did not receive any holiday pay and took no paid leave from January 2022 to April 2022 when her employment ended. The Complainant alleged that she was unfairly dismissed without compensation and that she was dismissed by reason of redundancy. The Complainant confirmed that her claims for outstanding salary for March and April 2022 and outstanding holiday pay from January to April 2022 should all be dealt with by way of a single claim under the Payment of wages Act 1991 being claim reference CA-00050142-005 and thus Claims CA-00050142-006 and CA-00050142-007 being in effect duplicate or overlapping claims in this regard, were withdrawn. The claims for Unfair Dismissal and the Claim for a statutory lump sum payment being mutually exclusive causes of action, the Complainant elected to proceed with claim CA-00050142-008 under the Redundancy Payments Act 1967 and the unfair dismissal claim CA-00050142-004 was withdrawn. As regards the Redundancy Claim, the Complainant gave uncontroverted evidence that her employment and the entire business of the Respondent ceased on the 29th of April 2022 and that she was dismissed by way of redundancy and was entitled to a lump sum calculated in accordance with the provisions of the Redundancy Payments Act 1967 as amended. As regards the claim under the Terms of Employment (Information) Act 1994, the Complainant said that she did receive a contract of employment which was produced to me. She alleged that this contract was not fully and completely in compliance with the said Act as amended. However, she did not allege that she had sustained any financial loss as a result of any such alleged non-compliance. |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent nor were any written submissions delivered. |
Findings and Conclusions:
CA-00050142-005 – Claim made pursuant to Section 6 of the Payment of Wages Act, 1991 in respect of unlawful deductions. I am satisfied on the uncontroverted evidence of the Complainant, given on affirmation at the hearing, that the Complainant worked in accordance with her contract of employment for the Respondent for the months of March 2022 and April 22 and that she received no remuneration in respect of this work and that the failure to pay her salary for these months constitutes an unlawful deduction as defined by the Payment of Wages Act 1991 in the total sum of €5,000. I am further similarly satisfied that the Complainant took no holidays from January 2022 to April 2022 and that when her employment ended in April 2022 her contractual holiday entitlement crystallised such that she was entitled to be paid in lieu of holidays earned but neither taken or paid reflecting 4 months entitlements at 1.66 days per month totalling 6.64 days at the daily rate of €82.19 per day – total €545.74 and the failure to pay this sum to the Complainant also constitutes an unlawful deduction as defined by the Payment of Wages Act 1991 in that sum. Accordingly the Payment of Wages Claim in respect of these two claims is well founded and the Respondent is directed to pay the total sum of €5,545.74 to the Complainant by way of compensation for breach of the Payment of Wages Act 1991.
CA-00050142-008 Redundancy Claim I am satisfied that the Complainant’s position is redundant and that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of her employment based on the following facts
Commencement Date: 1st of March 2014 End of Employment: 29th of April 2022 Gross weekly pay: €576.92
CA-00050142-009 claim pursuant to Section 7 of the Terms of Employment (Information) Act 1994 Having examined the Complainant’s contract of employment, I find that the same was in substantial compliance with the Act and that such issues of non-compliance as arose were de minimus (or trivial) in nature and did not give rise to any financial or other loss to the Complainant. Accordingly, I find that this complaint is not well founded.
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Decision:
CA-00050142-008
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The Employer has failed to pay a redundancy payment in accordance with the Act and the within claim constitutes an appeal by the Employee (Appellant/Complainant) against that failure as provided for by s. 39, subsections (15). I allow that appeal.
A Redundancy Lump sum award should be made to the Employee/Appellant/Complainant based on the following details:
Commencement Date: 1st of March 2014
End of Employment: 29th of April 2022
Gross weekly pay: €576.92
CA-00050142-005
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complaint pursuant to Section 27 of the Organisation of Working Time Act 1997 is well founded and the Respondent is directed to pay the sum of €5,545.74 to the Complainant by way of compensation for breach of the Payment of Wages Act 1991 subject to taxation and the normal statutory deductions.
CA-00050142-009
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complaint pursuant to Section 7 of the Terms of Employment (Information) Act 1994 is not well founded.
Dated: 10-07-2023
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Redundancy – Redundancy Payments Act 1967 - Unlawful Deduction - Payment of Wages Act, 1991 – Terms of Employment (Information) Act 1994 |