ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00042059

Parties:

	Complainant	Respondent
Parties	Helen Ryan	McSweeney Assets Group Holdings Ltd T/A O'Rourkes Pharmacy

Representatives

Self

No appearance

Complaint(s):

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-00052758-001	06/09/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00052758-002	06/09/2022

Date of Adjudication Hearing: 23/05/2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967 - 2014following 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. Notification of the complaints and the hearing were issued to the Respondent at the addresses provided by the Complainant including by email to a Mr Geert Hoff at an address outside Ireland. All attempts at communication by the WRC were undeliverable. The business, a pharmacy, closed in December 2021. There is no reason to believe that it is no longer a legal entity although it is not trading, and the Complainant gave evidence that her daughter had checked, and the Respondent is recorded on the Revenue Website as still active. Based on the available information a decision is issued on the complaints. I am satisfied that the WRC made every reasonable effort to serve notice of the hearing on the named Respondent at the Complainants place of work and elsewhere.

The Complainants daughter supported her at the hearing as it was, she who had sent texts and emails to the accountant for the Respondent over a period of months.

The amended name of the Respondent as set out in this Decision is that provided by the Complainant to the Adjudication Officer.

The Complainant gave evidence under oath.

Background:

These complaints are concerned with nonpayment of statutory redundancy pay and unpaid wages and holiday pay. The Complainant worked in this business from 1999 and was part of a transfer of undertakings which occurred in 2008. Details are set out below.

Summary of Complainant’s Case:

In her evidence the Complainant stated that she was employed at the pharmacy as an over-the-counter sales assistant. She was previously employed full time, but this changed to part time working eight hours per week in receipt of the minimum wage approximately two years before the closure of the pharmacy. At the time of the closure the employer was McSweeney Assets Group (amended on documentation provided post hearing) trading as O’Rourke’s Pharmacy. There were other pharmacies in the group and the one in Mountrath was the last one to close. The pharmacist and her immediate employer was Mr Geert Hoff. A Mr Stephen Maguire was the accountant for the Respondent.

On 9.11.2021 the Complainant received her notice of termination, and she was asked to provide details of any payments due. She replied that she was due redundancy and also two day’s holiday pay together with one days wages. Mr Maguire assured her through her daughter that the monies would be paid and encouraged her to put off making a complaint to the WRC. The amounts claimed as owing to the Complainant were. not disputed. There were many promises made. Asked when the last contact with the accountant was, the Complainant was not sure. As the complaints were not submitted to the WRC until 06.09.2022 well over six months after the payment of wages became due on termination, or even shortly after that, the Complainant was asked by the Chair to provide communications sent to and from the Respondent and or his agent seeking payment. These were submitted on behalf of the Complainant post the hearing - on 25.05.23.

The complaint form gave at the date of employments 05.12.2008 to 09.12.2021. At the hearing however, the Complainant asked about her previous service with Eleanor O’Rourke which commenced in or around 14.10.1999 and was unbroken when she transferred to work with McSweeney Assets Ltd in 2008. The new owners called to the shop one day and asked would she be willing to work with them and she agreed.

Summary of Respondent’s Case:

There was no attendance.

Findings and Conclusions:

Complaint Redundancy Payments Act 1967 as amended.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

As the Complainant made both an application to the employer (12.21) and to the WRC (06.09.22) within 52 weeks of the date of termination the complaint falls to be considered in accordance with Section 24 of the Act.

I am satisfied that the transfer of the place and nature of the business in which the Complainant worked for O’Rourkes Pharmacy to the successor company was a transfer of undertakings and therefore all of the Complainants service is continuous for the purposes of calculating her statutory redundancy. The appeal of non-payment of statutory redundancy by the Respondent at the time she was made redundant in December 2021, or since, is upheld.

Complaint Payment of Wages Act 1991

Time limits for making complaints to the WRC which apply to this claim are those contained in Section 41 of the Workplace Relations Act 2015 at the following sub sections:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

And

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The time limit for the purposes of Section 41(6) above commenced in the case of the Complainant on 09.12.2021 and concluded on 08.06.2022. As the complaint was submitted to the WRC on 06.09.2022 it falls outside the scope of sub section (6) of 41 which then requires consideration of the application of terms of sub section (8) to the facts in terms of the reason for the delay in submitting the complaint to the WRC.

One email and texts provided to the AO post the hearing show contact on behalf of the Complainant with the accountant for the Respondent commencing on 08.12.2021 and continuing over the succeeding months with the final date being a text which is dated 24.06.2022 on the screenshot. Each communication on behalf of the Complainant was awaiting and expressing frustration at the delay in receiving the payments due the detail of which were provided in December 2021. The content of the communications from the accountant suggest that he was in direct contact with Mr Hoff and in some of them he expressed optimism that the monies owed would be paid. There is no evidence of any direct contact from Mr Hoff.

As these communications were not provided to the hearing there was no opportunity to question what led to such a long gap in the dates between the texts and email provided and the submission of the complaint. Nonetheless I have decided to apply the terms of subsection (8) in this case for the following reasons:

· The Complainant was entirely dependent on others to pursue the matter of her complaint-she had no professional advice.

· While clearly important to the Complainant, the amount involved in this complaint is not large -€250 approximately- it does represent three weeks pay on her earning. Therefore, I consider that denying her access to that payment in circumstances when the responsibility for making that payment lay with and was well known to her former employer would be perverse rather than reasonable in terms of the cause of the delay. In arriving at this conclusion, attention is drawn to the actual language of the statue-reasonable cause is the standard to be applied and not exceptional reasons or cause.

· There was no one present for the Respondent to argue against the extension of a time limit. On the contrary, from the contents of the email and texts between the Complainants daughter and the accountant, the Respondent knew well there was a liability to the Complainant. Instead of facing up to that liability, it is clear that there was a pattern of misleading the Complainant through a third party to the effect that the payments due would be paid or it was hoped that they would be paid. Waiting too patiently for those commitments or understandings to be honoured may have been unwise but to reward such chicanery by the employer at the time would not, in my view be seen by any reasonable person as providing justice to the Complainant in this case. In certain legislation there is a provision for a change in the date when a calculating a time limit commences where a delay can be attributed to misrepresentation by Respondent. While this principle is not specified in the Payment of Wages Act in relation to time limits, in terms of the administration of justice that principle can be fairly applied to the facts in this case where there was no definitive communication by or on behalf of the Respondent stating that payment of the outstanding wages(or redundancy pay)would not be made by him to the Complainant within the initial six month period specified in section in section 41(6) of the Payment of Wages Act 1991.

The complaint of wages owed and unlawfully withheld from the Complainant is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Payment of Wages Act 1991

And

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.

CA-00052758-001 Redundancy Payments Act 1967 as amended

The appeal by the Complainant of the failure of the Respondent to pay her redundancy pay is upheld with the proviso that she was in insurable employment during the period set out

Dates of employment; 14.10.1999 TO 4.12.2008

Pay on termination €85.60 gross per week

CA-00052768-002 Payment of Wages Act 1991

The Complainant has a well-founded complaint of unpaid wages/holiday pay against the Respondent at the time of termination. The amount of compensation due to the Complainant is €257.80 nett.

Dated: 9th June 2023.

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Redundancy inclusive of continuous service-wages pay withheld on termination; time limit.