Complainant

Respondent

Parties

Francis Foley

Jayden & Preston Limited, trading as Parcel King

Representatives

 Self-represented

Roberta Urbon, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00061803-001

27/02/2024

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

CA-00061803-002

Not for adjudication

27/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00061803-003

27/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00061803-004

27/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00061803-005

27/02/2024

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

CA-00061803-006

27/02/2024

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

CA-00061803-007

27/02/2024

On October 12th 2020, the complainant commenced working as a van driver with “Nova Point Limited” which traded as “Parcel King.”  The company had contracts to collect and deliver documents, newspapers, opticians’ orders, and medical slides.  At the hearing, the complainant said that he generally worked from 4.00pm until 6.00am the next day.  He submitted payslips which show that his gross weekly pay was generally €575 plus €192.25 in subsistence pay.  His first stop every afternoon was at AIB Bank in Ballinamore, County Leitrim, from where he collected two bags of documents.  He then made 26 stops at various business premises between Ballinamore and Dublin, until he reached the Parcel King warehouse in Finglas.  He collected from banks, opticians, solicitors’ offices and Breastcheck clinics.  When he dropped the deliveries at the warehouse in Finglas, he returned to Leitrim, making 26 stops on the return journey, delivering documents to banks and legal firms and dropping newspapers at shops and filling stations.  In more recent months, he said that he collected and delivered motor parts.

On May 5th 2023, the complainant said that the name of his employer on his payslip changed to “Jayden & Preston Limited.”  He wasn’t informed about this change, and he said that he didn’t know the name of anyone in charge in Jayden & Preston.  He said that the only contact he had with his new employer was when someone called to his house to give him a different van which, he said, was in a worse condition than the van he had with Nova Point.  The van provided to him by Jayden & Preston had no automatic toll tag and he paid the toll fees himself, for which he wasn’t always reimbursed.

The complainant said that he received his wages as normal on Friday, September 1st 2023.  For the previous 25 nights, he said that he filled the van with diesel which cost him €500 and for which he wasn’t paid.  He then got a telephone call from a co-driver who told him that the warehouse in Finglas was locked and that the company was “gone.”  The complainant said that he heard nothing from the respondent and, although he phoned the warehouse numerous times, he got no answer. 

One Sunday morning at the end of September, the complainant said that five men called to his house, without prior arrangement, and asked him for the keys of the company van.  He handed over the keys and the van was driven away. 

The complainant said that he made enquiries with the Revenue Commissioners regarding his tax affairs.  He discovered that, from May 5th 2023, when the name on his payslip changed from Nova Point Limited to Jayden & Preston Limited, payments for PRSI, PAYE and USC deducted from his wages were not remitted to the Revenue Commissioners and the Department of Social Protection.  The complainant submitted a Revenue document at the hearing showing deductions in respect of his earnings with Nova Point Limited, but no deductions from May 5th 2023 for Jayden & Preston Limited.

On February 27th 2024, the complainant submitted these complaints to the WRC.

In accordance with section 7 of the Redundancy Payments Act 1967, he claims that he is entitled to a redundancy payment.

In contravention of section 9 of the Protection of Employment Act 1977, he claims that his employer failed to consult with his representative in advance of making him redundant.  In contravention of section 10 of that Act, he claims that his employer did not provide him with information to which he is entitled, in advance of making him redundant, and that his employer did not inform the Minister for Enterprise, Trade and Employment (“the Minister”) in advance of making all his employees redundant.

In breach of section 5 of the Payment of Wages Act 1991, the complainant claims that he is entitled to a “back week” for wages properly payable from when he commenced with Nova Point in October 2020.  He also claims that he is entitled to pay for holidays not taken from May 5th until August 31st 2023.

In contravention of section 4 of the Minimum Notice and Terms of Employment Act 1973, the complainant received no notice of the termination of his employment.  He therefore claims that he is entitled to be paid in lieu of notice.

In her submission dated August 8th 2024, Ms Urbon referred to the fact that the complainant made no reference to a claim under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  She said however that, if there was a transfer, it occurred in January 2023.  She said that the complainant was employed as a van driver by the respondent from May 5th 2023 and that he resigned around September 1st 2023.  Based on this position, Ms Urbon argued that I, as the adjudicator, have no jurisdiction “to make an award.” 

Preliminary Issue:  Length of Service to Claim an Entitlement to a Redundancy Payment

As Ms Urbon stated in her submission, the complainant did not bring a claim under the under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  The complainant accepts that his employment transferred from Nova Point Limited to Jayden & Preston Limited.  In his evidence, he said that he noticed that the name of his employer on his payslip changed on May 5th 2023.  Regardless of the date on which the transfer took place, either in January 2023, as submitted by Ms Urbon, or, on May 5th 2023, the complainant continued to do the same work that he was doing for Nova Point Limited, driving the same route, doing the same collections and drop-offs and attending at the same place of work for the same wages.  His employment with Nova Point Limited was not terminated.  It is apparent to me therefore, that the business of Nova Point Limited or, the part of the business that the complainant worked in, transferred to the respondent in January or May 2023.  Without any notification to the complainant, his employment transferred from Nova Point Limited to the respondent.  Based on this finding, I am satisfied that the complainant’s start date with the respondent was October 12th 2020.

CA-00061803-001:

Complaint of a Contravention of Section 7 of the Redundancy Payments Act 1967

Section 7(2) of the Redundancy Payments Act 1967 sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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[.]”

As the complainant’s employer ceased operations in the place where he was employed, his job has become redundant.  As he has completed more than two years of service, he is entitled to a redundancy payment.

CA-00061803-002:

Complaint under section 39 of the Redundancy Payments Act 1967

This is a complaint regarding the failure of an employer to show that they are unable to pay an employee a redundancy payment.  I understand that, although this complaint features on the manual version of the complaint form which the complainant sent to the WRC, its inclusion is an error and this is not a complaint that I can adjudicate on.

CA-00061803-003:

Complaint of a Contravention of Section 9 of the Protection of Employment Act 1977

This complaint concerns a contravention of section 9 of the Protection of Employment Act 1977, regarding the failure of the respondent to consult with the complainant’s representative in advance of making him redundant.  This section provides that, when an employer proposes to implement collective redundancies, they must consult with the employees’ representative about the possibility of avoiding the redundancies, and about the process to be used to select employees for redundancy.  This requirement applies even in circumstances where employees are not represented by a union or where there is no elected employee representative.  In such circumstances, the employer is obliged to inform the employees of their right to nominate a representative for the purpose of consultation.

Section 6(1) of the Protection of Employment Act defines a collective redundancy as the redundancy of,

a)      At least five employees in an establishment employing between 20 and 50 employees;

b)     At least 10 employees in an establishment employing between 50 and 100 employees;

c)      At least 10% of the employees in an establishment employing between 100 and 300 employees;

d)     At least 30 employees in an establishment employing more than 300. 

Based on the information available in the employer’s financial statement to April 30th 2023, which is on the register of the Companies Registration Office, I am satisfied that, when the complainant’s employment was terminated, Jayden & Preston Limited employed more than 20 people.  I am satisfied also from the complainant’s evidence, that more than five employees lost their jobs as a result of the closure of the business at the end of September 2023.  Based on this information, I am satisfied that this loss of jobs constitutes a collective redundancy.

Considering the evidence adduced by the complainant, I am satisfied that his employer failed to consult with him or with a representative on his behalf, concerning the risk that his job would be made redundant.

CA-00061803-004:

Complaint of a Contravention of Section 10 of the Protection of Employment Act 1977

Section 10(2) of the 1977 Act places an obligation on an employer, in the circumstances of a collective redundancy, to provide the following information to their employees’ representative:

(a) the reasons for the proposed redundancies,

(b) the number, and descriptions or categories, of employees whom it is proposed to make redundant,

(c) the number of employees, and description or categories, normally employed,

(cc)(i) the number (if any) of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies engaged to work for the employer,

(ii) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(iii) the type of work that those agency workers are engaged to do,

and

(d) the period during which it is proposed to effect the proposed redundancies.

(e) the criteria proposed for the selection of the workers to be made redundant, and]

(f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice.

Under this heading, section 10(3) provides that, in addition to providing this information to the employee’s representative, the employer must provide the Minister for Enterprise, Trade and Employment with copies of the information referred to above.

Based on the complainant’s evidence, it is apparent that none of the information above was provided to him or to a representative on his behalf.  At the hearing, and, following the hearing, the representative of the employer provided no evidence that the Minister was notified of the proposal to implement collective redundancies.

CA-00061803-005:

Complaint of a Contravention of Section 12 of the Protection of Employment Act 1977

This complaint concerns a contravention of section 12 of the Protection of Employment Act 1977, regarding the failure of the employer, 30 days in advance of the proposed collective redundancies, to supply the Minister with certain information concerning the particulars of the employer, the proposed redundancies and details of the consultation between the employer and the employees’ representatives.

Section 13 of the 1977 Act provides that an employer who contravenes section 12 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000.  There is no provision under this section for an adjudication officer to make an award of redress.

CA-00061803-006:

Complaint under section 6 of the Payment of Wages Act 1991

Section 5(6) of the Payment of Wages Act 1991 addresses the circumstances in which wages which are properly payable are not paid:

(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.

It is apparent from this section that, where wages are properly payable, the failure of an employer to pay such wages is an illegal deduction.  I am satisfied that the failure of the respondent to pay the complainant’s wages for the “back week” when his employment was terminated, is a breach of section 5(6) of the Payment of Wages Act 1991.  I am satisfied also that, when his employment was terminated, Mr Foley had an entitlement to pay for 6.5 days’ annual leave that he did not take when he was employed by the respondent between May 5th and August 31st 2023.

CA-00061803-007:

Complaint under section 12 of the Minimum Notice and Terms of Employment Act 1973

Section 4 of the Minimum Notice and Terms of Employment Act 1973, provides that an employee, such as the complainant, with more than two years of service, is entitled to two weeks’ notice from his employer in the event of the termination of his employment.  As the complainant received no notice, he is entitled to be paid in lieu of notice.

Expenses Related to Toll Charges and Diesel

There is no provision in employment law for the reimbursement of expenses incurred by an employee in the course of his job.  For this reason, I can make no findings with regard to the complainant’s losses in this regard.

CA-00061803-001:

Complaint of a Contravention of Section 7 of the Redundancy Payments Act 1967

Subject to his PRSI contribution status, I decide that the complainant is entitled to a statutory redundancy payment based on the current statutory ceiling on weekly pay of €600 and his service from October 12th 2020 until September 29th 2023.

CA-00061803-002:

Complaint under section 39 of the Redundancy Payments Act 1967

As I have set out in the previous section under this heading, I have no jurisdiction to adjudicate on this complaint.

CA-00061803-003:

Complaint of a Contravention of Section 9 of the Protection of Employment Act 1977

In accordance with section 11A of the 1977 Act, I may award compensation equivalent to four weeks’ gross pay for a breach of section 9 and 10.  In respect of the section 9 breach, I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €2,300, equivalent to four weeks’ gross pay.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00061803-004:

Complaint of a Contravention of Section 10 of the Protection of Employment Act 1977

In respect of the breach of section 10 of the 1977 Act, I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €2,300, equivalent to four weeks’ gross pay.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00061803-005:

Complaint of a Contravention of Section 12 of the Protection of Employment Act 1977

There is no provision in the 1977 Act for an adjudication officer to award redress for a contravention of section 12 of the Protection of Employment Act 1977.

CA-00061803-006:

Complaint under section 6 of the Payment of Wages Act 1991

I decide that this complaint is well founded.  I direct the respondent is to pay the complainant compensation of €575 gross in respect of his “back week” and €747.50 gross in respect of 6.5 days’ holidays pay not paid to him at the date of termination, a total of €1,322.50.  In accordance with section 6 of the Payment of Wages Act (as amended), I am required to direct the respondent to pay compensation as a net amount.  I note from the complainant’s payslips that his weekly deductions for PAYE, PRSI and USC were €142.24.  In respect of redress therefore, I order the respondent to pay the complainant compensation of €1,038.02 (€1,322.50 - €284.48).     

CA-00061803-007:

Complaint under section 12 of the Minimum Notice and Terms of Employment Act 1973

I decide that this complaint is well founded.  The complainant worked for the respondent for two years and 50 weeks.  In accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, he is entitled to two weeks’ notice.  I therefore direct the respondent to pay the complainant compensation of €1,150.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00061803-001:  The complainant is entitled to a statutory redundancy payment, to be calculated as set out in the previous section.

CA-00061803-002:  I have no jurisdiction to adjudicate on this complaint.    

CA-00061803-003:  Section 11A of the Protection of Employment Act 1977, €2,300

CA-00061803-004:  Section 11A of the Protection of Employment Act 1977, €2,300

CA-00061803-005:  There is no provision for redress at the WRC in relation to this complaint.

CA-00061803-006:  Section 4 of the Payment of Wages Act 1991, €1,038.02

CA-00061803-007:  Section 12 of the Minimum Notice and Terms of Employment Act, €1,150

Total award:  €6,788.02, plus the complainant’s entitlement to a statutory redundancy payment.

This total award is not subject to any deductions for PAYE, PRSI or USC.

Redundancy, notice, pay in lieu of notice, closure of business, failure to consult with employees