Adjudication Reference: ADJ-00046536
Parties:
| Complainant | Respondent |
Parties | Deborah Maher | PM Purchasing Services Limited |
Representatives | Self | Michael Murphy Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057386-001 | 28/06/2023 |
Date of Adjudication Hearing: 28/11/2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
I allowed the right to test the oral evidence presented by cross examination.
Evidence was given on affirmation.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I am required to set out ``such evidential material which is fundamentally relevant to the decision´´ per MacMenamin J. in Nano Nagle School v Daly [2019] 3 I.R. 369.
Background:
The Complainant commenced working for the Respondent on the 7 June 2010. Her employment ended on the 18 May 2023 due to cessation of trading /redundancy. She was in receipt of gross payment of €372 per week for a 31-hour working week. She was given notice of the ending of her employment on the 5 May 2023. She finished work on the 19 May 2023 and that was her last pay date. |
Summary of Complainant’s Case:
The Complainant's claim was for four weeks’ notice. She confirmed she received her Redundancy payment. In response to the Respondents claim that she was overpaid for holidays in 2022, she submitted that she was never made aware of that. She said she was never given a payslip and only received payslips when requested. |
Summary of Respondent’s Case:
The Respondent submitted that it was not in dispute that the Complainant was entitled to for weeks’ notice. Its case was that the Complainant had been overpaid her holiday entitlement in 2022 and it was entitled to deduct this overpayment from her notice entitlement. The overpayment amounted to €900. The Respondent explained that it had spoken to the Complainant about her holidays in 2022 but agreed that did not provide anything in writing to her. |
Findings and Conclusions:
In its oral submissions, the Respondent submitted that it was "legally entitled" to make the deduction of the holiday overpayment from the notice payment due. As is set out in Kerr’s Consolidated Irish Employment Legislation: The position as to whether the employer is entitled to offset the claimant's minimum notice against his or her holiday entitlement is somewhat confused. Some decisions of the Employment Appeals Tribunal held that the employer is so entitled (see Kelly v Michael Amber Ltd M 409/1979, Buckley v D. & E. Fitzgibbon Ltd M 808/1986 and McQuinn v Kennedy UD 548/1988); whereas others have held to the contrary (see Maher v Ashton Tinbox Ireland Ltd M 4720/1986 and Roche v United Yeast Co. Ltd UD 822/1987). However, these cases relate to a situation where the Complainant has accrued holidays, and these are due to be paid on the termination of his or her employment in addition to his or her notice entitlement. In this case, the Complainant remained in employment until 19 May 2023. She made no reference to a claim of outstanding holiday pay for 2023 before the WRC. No evidence was presented as to whether she was paid holidays that she accrued working 20 weeks in 2023 and how her overpayment of holidays in 2022 was dealt with viz a viz same. No written contract of employment was presented to me containing the entitlement of the Respondent to deduct an overpayment from any payments due to the Complainant. Considering the Respondent was on notice of the overpayment since December 2022, it is noteworthy that it did not address the overpayments with the Complainant and seek to reach a repayment of same prior to the termination of her employment. In the circumstances of this case, I do not accept that I have the power to deduct from the Complainant’s statutory entitlement to minimum notice any overpayment in respect of holidays paid to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is well founded. I award the Complainant the sum of €1488 being 4 weeks’ wages at €372 per week gross. |
Dated: 29/01/2024
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Minimum notice. Deduction of overpayment for holidays. |