ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048859
Parties:
| Complainant | Respondent |
Parties | Grainne O'Flaherty | Lifetime Care Ltd |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self | No attendance |
Complaint(s):
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-00059295-001 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00059295-002 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059295-003 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059295-004 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00059295-005 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00059295-006 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00059295-007 | 09/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059295-008 | 09/10/2023 |
Date of Adjudication Hearing: 12/07/2024 documentary evidence received 12.08.24
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Complainant provided an address in Galway as the address of the Respondent. When the WRC correspondence was returned form that address, the WRC sought a further address from the Complainant. She replied that the only addresses she had were the two in County Galway. The Respondent had notified employees that he had ceased trading on 05.10.23. The WRC had requested CRO information. The Complainant subsequently provided an address in Rathmines in Dublin and this address was then used by the WRC for further correspondence after February 14th, 2024. I am satisfied that the Complainant exceeded the requirement to provide the details of her employment address and the WRC issued notices to the addresses provided at different stages.
This is one of a number of complaints to the WRC made by former employees in respect of unpaid statutory entitlements following the issuing of a Whats app message by Mr Ken O Sullivan(the Respondent) dated 05.10.23 in which he announced he was ceasing trading. Notably that notice contained no employment or registered address. I understand that the Respondent did not engage with the WRC in relation to any complaints heard to date.
In her complaint form, the Complainant wrote: ’Our Lifetime Care Manager signed us over to AghraHome Care Services. Paid by Saolta from 13/10/23. This information was not provided to a previous hearing of another complaint. Having explored the issue with the Complainant, the available evidence in terms of what actually transferred i.e., some staff and some contracts for service, would not constitute a transfer of undertakings within the meaning of that legislation. It is not even clear what role if any the legal entity Lifetime Care Ltd played in the change of service provider with effect from October 13th, 2024. On the basis of the conclusion, the Respondent in this complaint remains liable for any payments owing to the Complainant on the termination of her employment.
The Complainant was asked for further details of the wages claimed as unpaid in the final weeks and also holiday payments in 2023. The information was provided on 12.08.24 and some of the calculations take those documents into account.
The Complainant provided sworn evidence to the hearing.
Background:
The Complainant was employed by the Respondent as a carer with additional duties. Wages were unpaid in the three weeks leading up to October 5th, 2023. On that date the Respondent issued a Whats App message to employees stating that he was ceasing trading from that date due to difficulties with Revenue and the HSE. There was no contact by Mr O Sullivan with the Complainant after that date. It is noted that the message was on headed paper but contained no details of the employers address or CRO number. This complaint is concerned with non-payment of a number of outstanding liabilities for wages and statutory entitlements which remain unpaid. |
Summary of Complainant’s Case:
Date of Commencement 14.11.2020 Occupation care work plus administration and supervision Date of Termination 05.10.2024 The detail of the amounts claimed and the basis of the calculations on a gross and nett basis and some of the dates where not as precise as a simple gross and nett calculation due to overtime working over the period in 2023 albeit not to a set pattern or set number of hours. I have accepted the following amounts for calculation purposes. Average Gross Pay €472.50(35 hours without overtime) Average Nett Pay €385.02 The Complainant gave evidence on each of the items and amounts below-where applicable. There were question marks on the complaint form and entries on the manual form did not correlate with the terms used by the WRC on the official documentation. I am however satisfied that the detail of the complaints is correctly captured across the entries 001-008 below.
CA-00059295-001 Payment of Wages Act 1991 €1224.24 gross in unpaid wages on four dates between 29.09.23 and 13.10.23. Non-payment of travel expenses Non payment of Covid €1000 for care workers. Paid by HSE following representations-withdrawn. CA-00059295-002 Payment of Wages Act 1991 No payment in lieu of Notice on termination of employment CA-00059295-003 Organisation of Working Time Act 1997 Hours of work Sunday Working-details of Sundays worked without premium pay not provided-regarded as withdrawn at hearing. CA-00059295 -004 Organisation of Working Time Act 1997 Hours of work -long hours of work-this was not pursued at the hearing following discussion -regarded as withdrawn at hearing. CA-00059295-005 Unfair Dismissals Act 1977 Withdrawn at hearing-the dismissal was on grounds of redundancy. CA-00059295-006 Redundancy Payment Act 1969 Entitlement to Redundancy pay unpaid on termination of employment or since. CA-00059295-007 Minimum Notice and Terms of Employment Act 1973 No notice or pay in lieu of notice received on termination of employment. CA-00059295-008 Organisation of Working Time Act 1997 Non-payment of Holiday Pay and Public Holiday Pay The Complainant provided details of holiday pay received through a review of her bank statements. She found payment of one weeks wages in July 2023. The holiday year in the
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Summary of Respondent’s Case:
No information or evidence was provided by the Respondent. |
Findings and Conclusions:
CA-00059295-001 Payment of Wages Act 1991 €1224.24 gross in unpaid wages is the amount claimed for three pay dates between 29.09.23 and 13.10.23. At this and other hearings I received evidence of non-payment of wages in the final three weeks of employment. I am satisfied that this was indeed the case and the calculation by the Complainant is also accepted as accurate. The decision is the nett amount properly payable, at a deduction of 21% from the gross amount to arrive at a nett amount for the purposes of the Payment of Wages Act which requires that any decision be in nett amounts. €1224.24 gross €967.15 nett Non-payment of travel expenses. As advised to the Complainant , expenses are not a payable deduction under the Payment of Wages Act 1991. The complaint of unpaid wages is accepted as well founded. CA-00059295-002 Payment of Wages Act 1991 No payment in lieu of Notice on termination of employment Duplicate of 007 below-a separate decision is not required and the complaint is not well founded on this basis. CA-00059295-003 Organisation of Working Time Act 1997 Hours of work-withdrawn at hearing CA-00059295-004 Organisation of Working Time Act 1997 Hours of work-withdrawn at hearing CA-00059295-005 Unfair Dismissals Act 1977 Withdrawn in favour of 006-statutory redundancy. CA-00059295-006 Redundancy Payments Act 1967 The appeal against non-payment of statutory redundancy pay is upheld. In arriving at a calculation of average wages I have settled on the figure of €472.50 per week , average base pay without overtime. CA-00059295-007Minimum Notice and Terms of Employment Act 1973 The Complainant was entitled to two weeks gross pay in lieu of notice where that notice was not worked. €472.50 x 2 This is a gross payment of €945. CA-00059295-008 Organisation of Working Time Act 1997 Holiday Pay and Public Holiday Pay There were not details of public holiday payments not made. Unhelpfully, the payslips did not refer to either holiday or public holiday pay. The Complainant had to source both her timesheets and her bank statements to provide details of paid holidays. As the holiday year in the employment Gross pay January to October 2023 as per final payslip received €18731.26 plus unpaid wages of €1224.24 amounts to 19955.50 gross multiplied by 8% holiday allowance amounts to 1596.44 less 472.50 holiday pay in July 2023 leaving a balance of €1123.94 gross owed in holiday pay or 887.91 nett.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00059295-001 Payment of Wages Act 1991 This complaint in respect of unpaid wages is well founded. The Respondent is to pay the Complainant nett €967.16 CA-00059295-006 Redundancy Payments Act 1967 On the basis that the employment concerned is insurable, the appeal of the Complainant against the decision of the Respondent not to pay statutory redundancy is upheld in accordance with the following factual matrix: Name Grainne O Flaherty Rate of pay €472.50 on average-less than €600 per week Period of employment: 14.11.20 to 05.10.23
CA-00059295-007 Minimum Notice and Terms of Employment Act 1973 This complaint is well founded. The Respondent is to pay the Complainant €945 gross CA-00059295-008 Organisation of Working Time Act 1997 This complaint is well founded. The Respondent is to pay the Complainant €887.91 nett |
Dated: 14th of August 2024
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Payment of statutory entitlements on termination. |