Complainant

Respondent

Parties

Gavin  Teehan

Altada Technology Solutions Ltd.

Representatives

Self-represented

No appearance

Act

Complaint

Reference No.

Date of Receipt

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

CA-00055953-001

06/04/2023

The Complainant’s employment commenced on 01/03/’21 and he worked full-time (40 hours per week) until his employment ended on 31/12/’22.

His role was ‘Head of Relationship Management’, and his monthly gross pay was €10,250.

A receiver has been appointed (Grant Thornton), and the Complainant said that he had submitted what he was asked to submit to them also.

He filed his complaint with the WRC on 6/4/2023.

A hearing was convened on 4/3/2024.

No appearance was entered by or on behalf of the Respondent.

As per the Complaint form:-

‘I was initially informed of being temporarily laid off on the 26th July. I was told this would be for a six week period. However, following emails and messages from CEO [AB] over the following days, I was then taken back on the 1st August. [AB] said he needed a skeleton staff to keep the business going during this troubled period. I then worked up until my resignation from the company on the 31st December 2022. I was paid reduced wages for July/August/September despite never having been communicated this or agreeing to this. I was then paid nothing for October/November & December, despite assurances from [AB] that incoming investor money was imminent and that this would fix the problems. Eventually, I was forced to resign due to non-payment of salary and breach of contract.’

The complaint form sets out the monetary value of pay (salary) not received as: €36,761.00 gross, and the monetary value of holiday pay not received as €14,152.00, gross and the monetary value of notice not received as €10,520.00, gross.

At the hearing, the Complainant, Mr. Gavin Teehan, gave evidence on his own behalf, on affirmation.

He outlined that he started working for the Respondent company, in March 2021. He said that the first time a relevant issue occurred, i.e. that there was ‘some trouble in the company’ was in June 2022. He said that the company was a ‘new tech start-up’, that there was ‘a lot of up and down’ and ‘uncertainty.’ He explained that some of the staff had TUPE-d over, from a previous company. He said of the Respondent that ‘the whole way the company came to an end was pretty poor.’

He explained that he had a previous professional relationship with [AB] of the Respondent company, that he had regarded him as a friend, that they had worked together in previous roles.

The Complainant outlined that he was approached and asked to come in to the Respondent company and set up the sales teams. He said that the company ‘seemed to be on a very good path’, that it started with ten (10) people, then one hundred and fifty (150) people. He said that he had a lot of experience on the ‘sales side, relationship side, commercial side.’

He characterised the Respondent company as the ‘golden child, at one point’, that ‘everyone was talking about it both in Ireland and the States’, that it was ‘exciting’, and that at ‘tech conferences’ investors were offering large amounts of money.

He said that around May/June [2022] time, pay from the company was late for everybody. That was the first indication of a difficulty. He said the explanation provided at the time was that money that had been transferred from the US arm to the Irish arm of the company took a couple of days to come through, which resulted in the delay. However, he said that it then happened again. He said he thought that was ‘a bit sketchy.’

He outlined that there was then a virtual ‘town hall meeting’, in July, where there was ‘a bombshell.’ They were told that the Respondent company was ‘laying everybody off for six weeks.’ He said they were told this on a Teams Call.

In relation to queries from the Adjudication Officer, the Complainant outlined that there was no discussion of altering pay or conditions, there was no consultation and there was no redundancy.

The Complainant outlined that he ‘started as a right-hand man’ but that his perception was that he was ‘pushed further down the food chain’ as more C-suite executives were brought on board.

He outlined that there were reporting structure issues. He explained that in May that year, a number of the C-Suite executives had started to leave the business, unexpectedly – he said that it happened two (2) or three (3) times in a very short period of time. He said the CFO left within a week, that he had been seeking financial information he was not receiving, and left. He said that other members of the senior team left too.

He described a meeting which took place in August, in Dublin involving senior people, approximately ten (10) people. He said that the prospect of a management buy-out was raised. He said that he found it strange – that he was not working for the company, but he was being asked to participate in this. He was being asked to make introductions etc. He was asked by, the CEO, AB, to come back, so the Complainant requested that in writing. He said that he received nothing further.

He said that he had received a letter to officially say that he was being laid off which he had requested because he needed to provide it to mortgage providers etc. He said, since then, he never received any response, that he never got any letter back. He said that he was owed commissions and expenses from his previous time working for the company, that there had been a lump sum received in December (which addressed only a portion of what was owed), and since then, he had been involved in a game of ‘cat and mouse’ with the Respondent company. He said that he put to the company: ‘Pay me [the previous monies owed] and I’ll come back.’ He said that it was a ‘difficult’ situation, as he ‘had to stop paying all [his] normal monthly commitments, that he got into debt on them.’

He said, after that more things were coming out in the press about the Respondent business, in ‘The Business Post, in particular.’

He said that the story broke that on November 10th, 2022, that the company was going into receivership. He said that CEO, AB, told him on November 11th, 2022: ‘I knew nothing about this. I don’t know what they’re talking about.’ However, he pointed out: ‘But, he is the owner.’

He said that ‘subsequently, there has been so much coming out of the woodwork about Altada – lots of people owed money – employees and creditors.’

He emphasised that he had ‘no personal gripe’ but felt that the whole situation had been ‘handled poorly from a people point of view’, that ‘communication could have been a lot clearer.

He explained that he was in new employment with a different company since October. He said that he had ‘officially resigned’ from the Respondent company in December. He said that he ‘got an email from [AB], which simply said ‘received’, in acknowledgement of his resignation. He said he thought that his email was cut off, after that.

In November, he said that a receiver was appointed, Grant Thornton, and that he submitted what he was asked to submit to them. He outlined that his emails were then cut off. The contact point for Grant Thornton was Mr. Gerard Gormley.

The Complainant explained that he was contacted by CC - one of the staff members who was asked to be on the representative body – and that contact came from CC’s personal email address to the Complainant’s personal email address. He said that it pertained to pension (New Ireland). He said that he could confirm that some money had been put into that, the week prior to the hearing.

The Complainant outlined that he had had no contact from AB or his partner (who is also an owner/founder of the company).

He said that he had received some money (a small amount) from the insolvency fund, via Grant Thornton; and that there were cut-offs in relation to that. [The figure was in the order of €1,270.85]

The Adjudication Officer sought clarification from the Complainant as to what was the full amount outstanding/due and owing, to him. He said that it was approximately five (5) months wages, in the region of approximately €50,000 and that there was outstanding holiday pay. He said that the pension issue had been resolved. The Adjudication Officer gave him an opportunity to submit additional information, in support of his complaint, within a prescribed timeframe, which he did.

The Complainant said that his good name is very important to him, that he was very upfront with his new employer (as it was with him), which he really emphasised and appreciated. He emphasised the fact that he did nothing wrong and expressed gratitude for his new job, and that he was enjoying the role.

He also emphasised that he had ‘absolutely no personal gripe against [AB]’ or his partner. He expressed that he was ‘very disappointed’ as he ‘had had a decent relationship with [AB], for years’,  and said that ‘the way it all finished was so disappointing.’ He said that since November 2022, he had had ‘no contact from him’, which he characterised as ‘very strange.’ The Complainant expressed the view that he had moved on, and felt very fortunate in that, was grateful for his family life, and that he was enjoying his new job immensely, that he was ‘taking every day as it comes.’

He outlined that he had worked hard for the Respondent company, and that if there was a process to be followed (in relation to the WRC), he wished to follow it.

No appearance was entered by or on behalf of the Respondent.

Time limit

s.6(4) of the Payment of Wages Act 1991 sets out that “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.”

s.41(6) and s. 41(8) of the Workplace Relations Act 2015 set out as follows:

s.41(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.”

s.41(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.”

Reasonable cause

The Adjudication Officer, at the hearing, asked the Complainant to address her in relation to the issue of reasonable cause and her discretion to extend the timeframe, in line with the provisions of the legislation. He said that he had never been through this process before. He outlined the lack of communication from the Respondent company and highlighted the appointment of the receiver and that he engaged with them. He also obtained a new job. He said that he then heard that it is worth lodging your WRC complaint and following the process.

In those circumstances, I am extending the timeframe on the basis that ‘reasonable cause’ exists within the meaning of the Act, and in line with the applicable case-law. In particular, I find that the justice of the situation demands that the Respondent company should not benefit from its lack of communication with the Complainant, and the manner in which it handled the situation. I find that the Respondent has suffered no prejudice and that the Complainant has a good, arguable case.

In arriving at that decision, I am guided by the fact that the Labour Court has given consideration to the meaning to be ascribed to ‘reasonable cause’ in employment statutes as the basis for extending time to initiate complaints under those enactments.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, the Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. 

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In Salesforce.com v Leech EDA1615, the Court – having referred to the Determination in Cementation Skanska – stated:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

The Labour Court has further emphasised that where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time: It should consider if the Respondent has suffered prejudice by the delay and should also consider if the Complainant has a good arguable case.

‘Payment in Kind or Benefit in Kind’ & Expenses – exclusions under the Payment of Wages Act 1991

Further matters were submitted, some outside of the maximum potential twelve (12) month timeframe, in relation to which I am satisfied I have no further jurisdiction.

“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. (emphasis added)

(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. (emphasis added)

(2) Except in section 5(5)(f), a reference in this Act to an employer receiving a payment from an employee is a reference to his receiving such a payment in his capacity as the employee’s employer.

The Skanska case sets out five elements of the test for reasonable cause:

1.      The Complainant must explain the delay.

2.      The explanation must be reasonable.

3.      There must be an objective standard, applied in the circumstances of the case.

4.      There must be a causal link between the circumstances and the delay.

5.      The Complainant must show that, if the circumstances were not present, he would have submitted his claim.

In line with the Skanska case, I find that in the totality of the circumstances of the instant case, the Complainant has met the threshold required in order for me to exercise my discretion and extend the relevant timeframe. Having regard to the other factors identified as relevant for consideration by the Labour Court, I also find that there is no prejudice to the Respondent, and that the Complainant has a good arguable case.

I find that this complaint is well founded.

Pay is a fundamental term of any employment contract and I find that the failure by the Respondent company to pay the Complainant his salary, monies pertaining to untaken annual leave and monies notice pay constitutes an unlawful deduction within the meaning of the Payment of Wages Act 1991.

I direct the Respondent to pay the Complainant the outstanding monies due and owing, within 42 days of the date of this decision, as follows:-

These sums are subject to legal deduction as they arise.

1.      TOTAL Gross Outstanding Salary (Gross) covering the period July 2022 to December 2022, of €37,671, broken down as follows:-

-        Outstanding Wages (Gross) – July = €10,250 – €7,943 = €2,307

-        Outstanding Wages (Gross) – August = €10,250 – €7,943 = €2,307

-        Outstanding Wages (Gross) – September = €10,250 – €7,943 = €2,307

-        Outstanding Wages (Gross) – October = €10,250

-        Outstanding Wages (Gross) – November = €10,250

-        Outstanding Wages (Gross) – December = €10,250

2.      Outstanding untaken annual leave in the amount of:- €14,152

3.      Notice Pay in the amount of:- €10,520

4.      VHI contributions: I am satisfied that I do not have jurisdiction to grant this under the Payment of Wages Act 1991 as it constitutes a “payment in kind or benefit in kind”, within the meaning of the legislation. I am satisfied that it does not constitute an “emolument” within the meaning of the legislation.

5.      Expenses un-recouped, pertaining to travel and to phone: I am satisfied that I do not have jurisdiction to make any award in relation to any outstanding figure owed pertaining to expenses, as there is an express exclusion in relation to expenses, under the legislation.

Payment of Wages; Receiver; Extension of time; Expenses;