Complainant

Respondent

Parties

Anne  Furlong

Mackin Travel Limited

Representatives

  Self-represented

 Gaynor & Company

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-00047864-001

23/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047864-002

23/12/2021

The complainant submitted a complaint under the Payment of Wages Act, 1991 and a complaint under the Organization of Working Time Act, 1997.

The complainant commenced employment as the manager with the respondent travel agency on 23 January 1995. On 21/4/2021 she received notice of the impending liquidation of company. The respondent closed its business on 30 June 2021. She received her statutory redundancy payments on the 22 July 2021.

She earned €729 gross per week, net €635.

She submitted her complaint to the WRC on 23/12/2021.

CA-00047864-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant gave evidence under affirmation.

The complainant maintains that the respondent made an unlawful deduction of €5080 on 22 July 2021 when they failed to include her statutory eight weeks’ notice pay in her redundancy payments.

On 21/4/2021 she was notified of the closure of the business to take effect on 30/6/2021.

She contacted the Liquidator on many occasions to secure her notice payments, and while he told her he was checking up on it, he failed to pay her for her eight weeks’ notice.

CA-00047864-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent failed to pay her public holiday entitlements in respect of

13/4/2020,

4/5/2020,

1/6/2020.

The complainant is seeking payment for these public holidays.

The complainant is also seeking payment in respect of Good Friday which fell on 10/4/2020.

CA-00047864-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The Liquidator gave evidence under affirmation.

The Liquidator stated that the complainant was on lay off from 27 March 2020 until the termination of her employment on 22 July 2021. She was notified of her impending termination of employment on 21/4/2021 and was in receipt of PUP payments.  He states that her employment ended on 22 July 2021.

CA-00047864-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The Liquidator accepts her entitlement to public holidays but not to payment for Good Friday which fell on 10/4/2020.

CA-00047864-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I am required to decide if the respondent made an unlawful deduction of €5080, the amount equal to eight weeks’ net pay as a result of statutory entitlements, when he failed to pay the complainant this sum on 22 /7/2021 along with statutory redundancy payments.

Relevant Law.

Section 5 (1) of the 1991 Act states

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.’

The deduction of €5080 is not authorised by statute or the complainant’s contract, and the complainant did not consent to the deduction.

As per section 5(6) of the Act of 1991, I must first establish if the wages which the complainant claims were unlawfully deducted were properly payable to her. She must as a preliminary point, identify a contractual entitlement or an entitlement on some other basis as per section 5 (6) of the Act.

I find that section 4(2)(e) of the Minimum Notice and Terms of Employment Act, 1973 confers a statutory entitlement to eight weeks paid notice in respect of the complainant’s service of twenty-six years upon termination of her employment.

Concerning the admissibility of notice payments as part of a complaint under the Payment of Wages Act, 1991, the definition of wages contained in section 1 of the Payment of Wages Act, 1991 states

“Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)          n/a.

(b)          any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:”

I find that statutory notice payments constitute, therefore, properly payable wages within the meaning of section 5(6) of the Act of 1991.

The respondent accepts that he did not pay her eight weeks wages as provided for in the Act of 1973.

I find that the non-payment of these wages to be an unlawful deduction.

I find the complaint to be well founded.

The Act at section 6 provides that where

“the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

                              (a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

                              (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment.

This is a complaint under the Payment of Wages Act,1991.

The complainant was in receipt of weekly PUP payments of €350 a week. I find that compensation to the amount of €2280 which is based on her net weekly wage of €635, less the PUP payment of €350, to be an amount which is reasonable in the circumstances.                             

CA-00047864-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

This complaint was submitted on the 23 December 2021.

It refers to the contraventions of section 21(1) of the Act of 1997, in respect of public holidays which fell on

13/4/2020,

4/5/2020

1/6/2020.

The complainant was also seeking payment in respect of Good Friday which fell on 10/4/2020.

Good Friday is not a Public Holiday.

The limitation period set out in at section 41(6) of the Workplace Relations Act, 2015 is found at section 41(6).

It provides as follows:

 “(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.

Section 41 (8) addresses the discretionary power of adjudicators to extend time. It states:

 “(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.”

As these complaints were submitted more than eighteen months after the date of the contraventions, I find that I do not have jurisdiction to hear this complaint.          

CA-00047864-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I find this complaint to be well founded.

I order the respondent to pay the complaint the sum of €2280, subject to all lawful deductions.

CA-00047864-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

 I do not have jurisdiction to hear this complaint.

Unlawful deduction of wages. Statute barred complaint under Organisation of Working Time Act, 1997.