Complainant

Respondent

Parties

Kristene  O'Regan

O'Regan Site Dumpers t/a O'Regan Plant Sales (amended on consent at the hearing)

Representatives

  Self-Represented

Self-Represented

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-00052203-001

10/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 - 2015 (amended at the hearing)

CA-00052203-002

10/08/2022

The Complainant swore an affirmation with the Respondent also swearing an affirmation at the outset of the hearing.

The Complainant submitted her complaint to the Workplace Relations Commission which was received on 10 August 2022. The form was incomplete and following several attempts by the WRC to clarify matters it appeared from the Complainant’s evidence at the hearing that her complaint fell under the Unfair Dismissals Act 1977 rather than Section 11A of the Protection of Employment Act 1977. Having reviewed the narrative detailed on the Complaint Form together with the documentary evidence and her oral evidence it is clear it was her clear intention to submit a complaint under the Unfair Dismissals legislation. There was no issue to this raised by the Respondent. Therefore, the complaint has been amended accordingly.

Parties were given a full opportunity to present their evidence and cross examine each other.

The Respondent confirmed the correct name of the Company, and it was amended accordingly.

It was explicitly explained throughout the hearing to the parties that the jurisdiction of the WRC only relates to their employment relationship and therefore, any other proceedings or family matters have not been considered in this decision. The following is a summary of the relevant facts relating to the two claims before me only.

CA-00052203-001

It was the Complainant’s evidence that her weekly wages were reduced by the Respondent from 4 June 2022 from €1,000 per week to €485.  There was a further reduced on 7 September 2022 to €228.50 per week which was her last payment. The Complainant’s evidence was that she continued to work in the business which included invoicing up to 15 June 2022 when she was locked out of the business.

CA-00052203-002

It was the accepted by the Complainant that she did receive statutory redundancy in the sum of €17,724 from the Respondent on 9 September 2022. However, the role in which she undertook was later advertised and on this basis believes it was not a fair redundancy.

CA-00052203-001

It was the Respondent’s evidence that the Complainant was given notice of redundancy 20 July 2022 with her termination date falling on 31 August 2022.  While she remained an employee of the Respondent since July 2021, she did not undertake any work. There was an agreement that she would be paid until end of August 2022.

CA-00052203-002

It was the Respondent’s evidence that the Complainant was made redundant with a termination date of 31 August 2022 and paid the sum of €17,724 in statutory redundancy which she accepted.

It is noted there was no contract of employment produced in evidence by either party.

CA-00052203-001

Payment of Wages Act 1991, Section 6 (4) provides a time limit of 6 months for complaints to be considered by the Workplace Relations Commission:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”

This complaint relates to a period from 4 June 2022 - 7 September 2022 according to the Complainant’s evidence. The WRC received the Complaint Form on 10 August 2022. Therefore, I am limited to consider the claim from 4 June 2022 to 10 August 2022 but not after the date of submission of the complaint.

It was the Complainant’s evidence at the hearing that on 4 June 2022 her wages were unilaterally reduced from €1,000 gross per week to €487.48 gross/ €485 net per week. There was submission from the Respondent that the Complainant was not working with the company at that time. On the balance of probabilities, it is implausible that an individual would continue to be paid by the company despite not working for the company. There is no documentary evidence before me to explain the reduction in pay. On that basis I find the complaint is well founded for the 9-week period from June – August 2022.

CA-00052203-002

It is first necessary to look at the timing of the complaint under the Unfair Dismissals Act 1977 where notification of redundancy was given on 20 July 2022 with the date of termination being 31 August 2022, when her notice period expired. The Complaint Form was received by the WRC on 10 August 2022 which is prior to the termination date.

Section 1 of the Unfair Dismissals Act 1977 defines “date of dismissal” as the date —

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.”

The Labour Court in Action Health Enterprises Ltd v Michael D’Arcy, UD/19/141 considered this question in detail finding on two issues:-

“Firstly, if the employee was dismissed on the date of dismissal without either contractual or statutory notice then section 1(b) of the 1977 Act applies.”

Based on the uncontested evidence of the parties the Complainant was given notice on 20 July 2022 of her termination on 31 August 2022. There was no contract of employment therefore it falls to the statutory notice period. The Complainant commenced worked with the Respondent on 1 January 2007. Therefore, she was entitled to a statutory notice period of 8 weeks in accordance with Minimum Notice and Terms of Employment Acts, 1973 which meant her actual date of termination was 14 September 2022 and not 31 August 2022. Either way the Complaint Form was lodged and received by the WRC between the date of notice on 20 July 2022 and date of termination.

On the issue of her notice period and whether that was paid in lieu the Labour Court considered section 7(1) of the 1973 Act which states; “Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice". It was the Labour Court’s determination that the effect of this subsection is that where an employee waives her entitlement to notice or accepts payment in lieu of notice then their right to notice under Section 4 is extinguished.

The distinguishing factor in this case is the evidence of both parties that despite been given notice of redundancy on 20 July 2022 and paid redundancy, usually she continued to be paid a weekly wage up to 7 September 2022. Therefore, on the date the Complaint was received with the Workplace Relations Commission on 10 August 2022 she was an employee of the Company.

In Caragh Neeson-v- John O’Rourke & Sean O’Rourke Chartered Accountants (UD2049/2011) the EAT considered the question of where a Complainant lodged the complaint while still being an employee of the Respondent.  The Tribunal found that the wording of section 8(2) of the 1977 Act, “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date” The Tribunal went on to state, “if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn”.

Following the decision of the EAT where the complaint was submitted while she remained as an employee of the Respondent, it was not lodged in accordance with Section 8 (2) of the Unfair Dismissals Acts, 1977 to 2007 and I cannot accept jurisdiction to determine the substantive case.

CA-00052203-001

I find the complaint is well founded and award the Complainant compensation in the sum of €2,000

CA-00052203-002

I find I do not have the jurisdiction to decide on the substantive case and consequently, the Complainant was not unfairly dismissed.

Unfair dismissal – time – pre lodged clam – payment of wages.