Complainant

Respondent

Parties

James  Nolan

Stephen O’Sullivan T/A Nasorb Engineering

Representatives

  Self

 Self

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-00055745-001

22/03/2023

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 WITHDRAWN

CA-00055745-002

22/03/2023

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 WITHDRAWN

CA-00055745-003

22/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 WITHDRAWN

CA-00055745-004

22/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 WITHDRAWN

CA-00055745-005

22/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 WITHDRAWN

CA-00055745-006

22/03/2023

The dispute under the Payment of Wages Act 1991 is concerned with a complaint that the Complainant was laid off for five weeks without pay and was not contacted by the Respondent during that time. He did return to work with the Respondent and has since left the employment.

Mr Nolan is an electrician. He commenced employment with the Respondent on 04 July 2022. At the time of his lay off his rate of pay was €982.60 gross or €655.20 nett. His evidence is that he was working on a job in Galway on 13 February 2023. That evening he was told by Mr O Sullivan to ‘head away home’. He was expecting a message from the Respondent about further work but heard nothing. That week he sent his first of three messages to the Respondent but received no reply. Five weeks later he was contacted by the Respondent who said that the messages sent by the Complainant went to his daughters Tablet. He was told he had been let go because there was not enough work. As there was work at that stage he went back to work around March 17th and worked with the Respondent until June. The other employment issues were resolved. Asked why he felt he should receive payment as a payment which was ‘properly payable’ the Complainant referred to being let go with no word of any kind from the Respondent and that he felt neglected. At that time, he had no written terms and conditions of employment. The total sum claimed is €4914 gross or €3276 nett or five weeks pay.

The dates of commencement and the rate of pay given by the Complainant were not disputed. Mr O Sullivan gave details of difficulties encountered with workflow in February 2023; he was scrambling for work at the time. On Tuesday 13 February 2023 he told the Complainant to head away home. The job he was working on in Galway ended. March 24th, 2023, was the first contact he had from the Complainant when messages went to his own phone then. In response to the claim for loss of pay, Mr O Sullivan said he could not afford to pay the Complainant when he had no work and described himself as working eighty hours a week trying to obtain new contracts. He explained the lack of contact for five weeks as being down to his having nothing concrete to say to the Complainant.

The following is the extract from the Redundancy Payments Act which refers to lay-off or short time working and is the only legislation to unambiguously provide for a temporary layoff. The Minimum Notice and Terms of Employment Act 1973 provides only  for notice to be given in the event of the permanent cessation of the employment by the employer.

Lay-off and short-time.

11.—(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The existence of this clause in the legislation(followed by other references to short time working) implies that employers can place employees on temporary lay off for business reasons. The legislation then goes on to provide for circumstances where the period of lay off is extends over a period of weeks. As can be seen, the legislation does not require that compliance with Section 11 obligates an employer to give notice of lay-off in writing. Section 53 of the same legislation deals with the issuing of notices. Subsection(3) of the same section provides for oral communications ‘In this section reference to the delivery of anotice not required  by this Act to be in writing, be construed as including a reference to the oral communication of the notice’.  While it follows that the legislation provides for the circumstances of temporary lay-off, any notice of such lay-off, including an oral notice from the employer must give notice of his belief as to the status of the lay-off to the employee i.e., that the employer believes it will be a temporary situation. Accepting that this employer’s business is entirely dominated by achieving contracts and his credible evidence of experiencing difficulties in February 2023, it would require quite a stretch to convert ‘head away home’ to the minimum standard provided for in the Redundancy Payments Act, even allowing that written notice of lay-off is not required by the terms of Sections 11 and 53. The initial offence was compounded by the complete failure to make any contact with the Complainant in the weeks that followed to clarify or update the situation. Following from these conclusions, the employer cannot rely on the only statute which makes a specific provision for a temporary lay-off as a defence against not paying for the period of temporary layoff.

This situation is further complicated by the absence of any written statement of terms of employment agreed between the parties at the time which provided for temporary layoffs. As close as the provisions of the  Terms of Employment Act (12/2022) appear to get to providing for a lay-off situation to be addressed as a minimum requirement in any written statement is at Section 1A (l):

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

As there was no written statement of terms in place which provided an agreed understanding that the need for temporary layoffs could arise, that an employee could be laid off and how that might occur or even a reference to the terms of section 11 of the Redundancy Payments Act, the Respondent in this case has no statutory basis or contractual agreement which allowed him by reference to that statue or that written agreement to simply stop paying the Complainant. This conclusion is important in the context of the legislation under which the complaint is made, Payment of Wages Act 1991.

Regulation of certain deductions made and payments received by employers.

5.— (1) 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.

From the earlier conclusions, it follows that the Respondent did not provide notice of a temporary lay-off in the manner prescribed by the Redundancy Payments Act 1967. Furthermore, the Respondent had no written  agreement in the form of a statement of terms of employment which provided for lay-offs or how they would be managed and any related terms. Noting that in the absence of a specific written agreement,  an oral agreement could be concluded between the parties in a lay -off situation, in this case the Complainant had no opportunity to agree to a temporary lay-off, simply an instruction to finish up working with no further details at the time. The unilateral actions of the Respondent do not comply with Section 5 of the Payment of Wages Act 1991.

Based on the forgoing conclusion, the complaint of an unlawful cessation of wages and the related deduction of pay  is well founded. I believe these findings to be consistent with the findings of the Labour Court in Kostal vs named employees e.g. PW2212

The final element of the Decision is the compensation to be paid to the Complainant.

Section 6 of the Payment of Wages Act 1991

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers 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, or

(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,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

The Complainant was out of work for five weeks. In response to the undersigned, on August 31st he advised that he received no Social Welfare payments during that period of enforced lay-off as he did not know the status of his employment at the time. In arriving at an amount of compensation which is reasonable in the  circumstances, as a principle  it would not be unreasonable to expect that an employee would receive at least one weeks’ notice of the commencement of an immediate lay off or short time working or alternatively one weeks pay in lieu of notice of the temporary cessation. And that these terms would form part of the written statement of terms of employment. The circumstances of this case cannot be ignored, however. Even allowing for the fact that the Respondent was in difficulty at the time, the absence of any statement of terms were worked by him to his advantage and his neglect of any obligation to the Complainant including basic communications, cannot be ignored either. Compensation of two weeks nett pay is considered reasonable in the circumstances.

CA-00055745-001 Payment of Wages Act 1991 The Complaint brought by the Complainant  James Nolan against the Respondent Stephen O Sullivan is well-founded. The Respondent is to pay the Complainant €1310.40 nett in compensation.

Payment of wages during a period of  lay-off