Complainant

Respondent

Parties

Ujjwal  Gulyani

Psc Biotech Ltd

Representatives

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-00048604-001

13/02/2022

The Complainant was employed as a Senior Validation Consultant with the Respondent from 2 March 2020 and earned an annual salary of €68,250. He stated that following the termination of his employment on 13 August 2021, he did not receive his full notice entitlements in the final payment that was made to him by the Respondent on 27 August 2021.

The Complainant asserted that he gave notice of the termination of his employment in writing to the Respondent on 30 July 2021 and further stated that, in relation to his notice period, his contract of employment stipulated that

“ If you decide to leave employment with PSC Biotech, you are required to provide a minimum of 3 months’ notice in writing” .

Further to him having given notice of the termination of his contract, he stated that the Respondent told him that they would not be able to transfer him to one of their other clients when the project he was working on at that time finished because it would not be worth the new client’s while, given the training that would be involved. He stated that the Respondent subsequently terminated his employment on 13 August 2021 and further alleged he did not receive his full notice entitlements in accordance with his contract of employment.

The Respondent’s first witness, Ms Kos, stated that the Complainant had been temporarily laid off on 13 August 2021 following the completion of the work with the client where he was based at the time. She further stated that they could not transfer him to any other client given the training that would be required and stated that it would be a waste of time for a new client to train him as he was due to finish at the end of October.

The Respondent’s second witness, Ms Heather Kelly, denied that the Complainant was temporarily laid off. She further stated that the Complainant’s employment was terminated because he acted unethically in giving notice of the termination of his employment in circumstances where he knew both that the project he was working in at the time was coming to an end and that the Respondent would be unable to transfer him to a new client given that he was due to finish at the end of October.

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“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,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In respect of the instant case, I note that on 30 July 2021 the Complainant stated in his evidence that he gave 3 months’ notice of his intention to resign from his employment and should have received this in his final payment on 27 August 2021 given that the Respondent had chosen to terminate his employment on 13 August 2021.

Although I recognise that

(i)               after 13 August 2021 there was no further work for the Complainant on the site where he was working prior to this

(ii)              the Complainant would not consider rescinding his notice of termination despite the Respondent having sourced an alternative position on a different site for him

(iii)            the Respondent was unable to find an alternative short-time role for the Complainant after 13th August 2021 given that no new client would want to engage him until the end of his notice period because of the training requirements that would be involved,

I also note that the notice provision in the Complainant’s contract of employment is very clear and states “If you decide to leave employment with PSC Biotech, you are required to provide a minimum of 3 months’ notice in writing”. I therefore find that the Complainant was entitled to be paid for the full notice period in accordance with his contract of employment.

The complaint is well founded for the reasons set out above.

The Complainant’s gross annual salary at the time of his resignation was €68,250 and as his monthly salary was therefore €5,687.50, he was entitled to be paid €17,062.50 for the three-month period from 30 July 2021 to 29 October 2021, the date on which his notice period expired.  As the Complainant received wages in the amount of €2,430.82 on 27 August 2021 for the period he worked to 13 August 2021 and the amount he would have been paid for having worked on both 30 and 31 October 2021, but which both fall outside the notice period, was €366.94 (€68,250/12 months/31 days in the month of October *2 days), I find that the Respondent should pay the Complainant €14,264.74 (€17,062.50 – €2,430.82 - €366.94).