Complainant

Respondent

Parties

Sean  O'Mahoney

McGough Air Limited

Representatives

 No Appearance

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-00065400-010

13/08/2024

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

CA-00065400-012

13/08/2024

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

CA-00065400-001

13/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00065400-002

13/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065400-003

13/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065400-004

13/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065400-005

13/08/2024

The Complainant had a number of complaints following the termination of his employment with the Respondent by way of redundancy.

He confirmed he was a Forman with the Respondent from 25 February 2019 to 4 December 2023.

The Complainant earned a gross salary of €2,196.62 every two weeks.

CA-00065400-010

The Complainant stated he was due six weeks wages – two weeks unpaid wages in November 2023, two weeks annual leave in December 2023 and 2 weeks he worked in hand at the commencement of employment.

CA-00065400-012

It was the Complainant’s evidence that he worked 60 hours per week. He was required to travel to work to various sites in Cork and Limerick leaving his home around 6.30am and not returning until 5.30pm.

CA-00065400-001

The Complainant requested a contract of employment when he commenced employment in 2019 but it was never furnished by the Respondent.

CA-00065400-002

The complaint was withdrawn where he received his statutory redundancy.

CA-00065400-003

The Complainant gave evidence that he did not receive minimum notice from the Respondent. He was verbally told on 4 December 2023 by Mr McGough with a text message following on 7 December 2023 that the Respondent was unable to continue trading and he was made redundant.

CA-00065400-004

The Complainant gave evidence that he was not paid for his notice period.

CA-00065400-005

The Complainant gave evidence he did not receive his minimum notice upon termination.

After waiting a considerable period of time there was no appearance from the Respondent.

Numerous attempts were made to contact the Respondent at the registered business address, email and telephone. I am satisfied the Respondent was notified at its registered business address correctly.

CA-00065400-010

Section 1 of the Payment of Wages Act 1991 defines "wages", in relation to an employee, means 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, and

(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”

Redress is provided for under 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 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities 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 employeecompensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (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.”

I accept the undisputed evidence of the Complainant. I find the complaint is well founded.

Therefore, I direct the Respondent to pay the Complainant compensation in the sum of €2,195.62 being twice the amounts that were the Complaint paid in respect of the week immediately preceding the date of payment.

CA-00065400-012

Section 15 of the Act provides:

“15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, o

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

The Complainant’s evidence is accepted that he worked from 6.30am until 5.30pm 5 days a week. However, it is not accepted this amount to 60 hours but 55 hours per week. Regardless, it is accepted his working week was in excessive of 48 hours per week as prescribed by Section 15 of the Act. Consequently, I find the complaint well founded.

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress where a complaint is well founded.

Where the complaint is well founded, I order the Respondent to pay compensation of €4,391.24 being the equivalent of four weeks wages.

CA-00065400-001

I find the complaint is well founded.

As per Section 7 of the Act, redress in the form of compensation of such amount as the Adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

I order the Respondent pay the Complainant compensation of €4,391.24 being equivalent to four weeks wages.

CA-00065400-002

The complaint was withdrawn where he received his statutory redundancy.

CA-00065400-003

I find the Act was contravened however, where the Complainant gave evidence that he received his statutory redundancy payment from the Social Insurance Fund by the Department of Social Protection. Consequently, I am not making any order for redress.

CA-00065400-004

Section 5 of the Act provides: -

5.—(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

(2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.

(3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void.”

Second Schedule provides: -

“Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.”

I find the Act was contravened where the Complainant where was due two weeks paid annual leave during his notice period.

Redress is provided for within Section 12(1) of the Act: -

“12. (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 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”

In the circumstances, I direct the Respondent to pay the Complainant compensation in the sum of €4.391.24 for the loss sustained by the Complainant during the period of contravention.

CA-00065400-005

I find the Act was not contravened. The Complainant gave evidence he did not receive a contract of employment. Consequently, there is no evidence of a contractual clause relating to minimum notice.

CA-00065400-010

I find the complaint is well founded.

Therefore, I direct the Respondent to pay the Complainant compensation in the sum of €2,195.62 being twice the amounts that were the Complaint paid in respect of the week immediately preceding the date of payment

CA-00065400-012

The complaint is well founded. I order the Respondent to pay compensation of €4,391.24 being the equivalent of four weeks wages.

CA-00065400-001

I find the complaint is well founded. I order the Respondent pay the Complainant compensation of €4,391.24 being equivalent to four weeks wages.

CA-00065400-002

The complaint was withdrawn where he received his statutory redundancy.

CA-00065400-003

I find the Act was contravened however, I am not making any order for redress.

CA-00065400-004

I find the Act was contravened. I direct the Respondent to pay the Complainant compensation in the sum of €4.391.24 for the loss sustained by the Complainant during the period of contravention.

CA-00065400-005

I find the Act was not contravened.

Payment of Wages- Minimum Notice