Complainant

Respondent

Parties

Patrick  Houlihan

Premier Signs Limited

Representatives

  Self-Represented

 No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060255-001

27/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00060255-002

27/11/2023

The Complainant worked for the Respondent as a Sales Manager from the 29th January 2018 until the 10th November 2023. He earned €60,000 gross per annum. The Respondent’s business ceased trading and the Complainant did not receive his statutory redundancy payment, his last week’s wages, four weeks’ notice pay or his holiday pay. The complaints were submitted to the WRC on the 27th November 2023.

The Complainant stated in evidence that on the 8th November 2023 he was verbally informed that the Respondent would cease trading on the 10th November 2023.

On the 10th November 2023 the Complainant was furnished with a letter of the same date which stated that “[w]e regret having to tell you that the Company no longer has a position for you as Sales Manager and that this letter serves as your Redundancy Notice… Unfortunately, the Company is not in a position to pay for your Statutory Redundancy Notice period nor wages due after the 6th of November.”

The Complainant’s employment ended on the 10th November 2023. He confirmed that his statutory redundancy payment, his wages for the week ending the 10th November 2023, his four weeks’ notice pay and 10 days holiday pay remain outstanding as at the date of the hearing. The Complainant earned €1,154.00 gross per week and €813.76 net per week.

The Respondent did not attend the scheduled hearing of this complaint.  Notice of the hearing arrangements was sent to the Respondent on the 13th February 2024. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent. No explanation for the Respondent’s non-attendance has been received by the WRC. 

CA-00060255-01

The Complainant provided evidence of his redundancy, evidence of his calculated entitlement and evidence in support of his contention that the statutory redundancy payment was never made to him. He submitted a letter dated the 10th November 2023 wherein he was advised that “[u]nfortunately, the Company is not in a position to pay for your Statutory Redundancy Notice period nor wages due after the 6th of November.”

This complaint is for a statutory lump sum payment under section 39 of the Redundancy Payments Acts 1967 (as amended).  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must -

(1)    have at least 2 years’ continuous service;

(2)    be in employment which is insurable under the Social Welfare Acts;

(3)    be over the age of 16;

(4)    have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and

(5)    not have received a lump sum payment.

Section 7(2) of the Redundancy Payments Act 1967 (as amended) states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained…

Having heard the evidence, I am satisfied the Complainant’s situation falls to be considered under 7(2)(a) above.  I am satisfied that the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967 (as amended).  I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his redundancy as at the date of hearing. The calculation of gross weekly pay is subject to a ceiling of €600.00.  The calculation of the lump sum is a matter for the relevant department.

CA-00060255-002

The complaint referred to the WRC is that the Respondent unlawfully deducted wages due to the Complainant for the week ending the 10th November 2023, four weeks’ notice pay and outstanding holiday entitlement. The complaint was submitted to the WRC on the 27th November 2023. His salary was €60,000 gross per annum. At the hearing he confirmed that he was paid €1,154.00 gross per week and €813.76 net per week.

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provided the following definition of “wages” at section 1:

"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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

The above definition includes pay, notice pay and holiday pay. 

Sections 5(1) and 5(6) of the 1991 Act provides:

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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

The Complainant in his complaint form and oral evidence stated that he was given formal notice of redundancy on the 10th November 2023 and that his employment with the Respondent ended on the 10th November 2023. By letter dated the 10th November 2023 the Complainant was advised that “[u]nfortunately, the Company is not in a position to pay for your Statutory Redundancy Notice period nor wages due after the 6th of November.”

I found the Complainant to be a credible witness and based on his uncontested evidence I am satisfied that he was not paid wages which were properly payable to him. The Complainant was not paid his salary for the week ending the 10th November 2023, four weeks’ notice and his outstanding holiday pay.

I direct the Respondent to pay to the Complainant the following sums for the unlawful deduction of wages properly payable to the Complainant: the sum of €813.76 net in respect of his wages for the week ending the 10th November 2023, the sum of €3,255.04 net in respect of four weeks’ notice pay and the sum of €1,627.52 in respect of outstanding holiday pay.

I find that the Complainant is entitled to be paid the total net sum of €5,696.32.

CA-00060255-001

Having considered all the written and oral evidence presented in relation to this matter my decision is to allow the Complainant’s appeal against the failure of his employer to pay a redundancy payment.  I decide the within complaint is well-founded and I decide the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act 1967 (as amended) based on the following criteria:

Date of Commencement: 29th January 2018

Date of Notice of Termination: 10th November 2023

Date Employment Ended: 10th November 2023

Gross Weekly Wage: €1,154. This figure is capped at the maximum figure of €600 as his weekly wage exceeded that sum.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00060255-002

I find that the wages claimed by the Complainant were properly payable to him. He is due payment of his salary for the week ending the 10th November 2023, 4 weeks’ notice pay and accrued annual leave entitlement. I decide the complaint concerning the unlawful deduction of wages due is well founded and I direct the Respondent to pay to the Complainant compensation of the net sum of €5,696.32.  

Redundancy Payments Act – statutory redundancy unpaid – appeal allowed – unlawful deduction – wages – holiday pay – notice