ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046809

Parties:

	Complainant	Respondent
Parties	Keith McEntee	Andrew Brereton

Representatives

North Leinster Citizens Information Service CLG

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00057772-001	18/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057772-003	18/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057772-004	18/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057772-005	18/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00057772-006	18/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057772-007	18/07/2023

Date of Adjudication Hearing: 23/04/2024

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

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).

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.

Evidence was given on oath/ affirmation.

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 worked in a butcher’s shop from the 13 July 2020 until the 18 February 2023.

His employment ended because the Respondent ceased trading.

Summary of Complainant’s Case:

CA-00057772-001. This complaint is under the National Minimum wage.

On the 30 May 2023, the Complainant's representative sought a written statement of the Complainant's average hourly rate of pay for a pay reference period (17 July 2022 the 18 February 2023) under section 23 of the National Minimum Wage Act 2000. The Complainant did not receive a response.

The Complainant's evidence was that he worked a full week and his only day off was every second Sunday.

The butcher’s shop opened at 10 AM and closed at 7 PM. On Sundays the opening hours were 11 AM to 5 PM.

On the short week (Sunday off), he worked 51 hours and on the long week (working everyday) he worked 57 hours. He said he did not receive a lunch hour or tea breaks.

His evidence was that he was paid €10 per hour when he commenced employment. This fell short of the statutory minimum wage payment of €10.10 which was in force from the 1 February 2020.

The Complainant gave evidence that he is wages were €400 per week in 2020, €500-€580 per week in 2021 and €553.74 per week in 2022 and 2023.

The Complainant was paid weekly in cash despite his request to be paid directly into his bank account.

The Complainant did not receive weekly payslips, but did receive a number when he requested. He showed me two examples of the payslips received. One dated 6 November 2020 which showed a gross pay of €400.00 and one dated 4 November 2022 which showed a gross payment of €553.74.

The Complainant obtained his salary records from Revenue which showed he was only paid a gross salary of €303 per week. This was not correct.

His complaint was that for the entirety of his employment he was paid less than the minimum wage.

CA-00057772-003

This complaint was that he did not receive his notice payment.

His evidence was that the Respondent came into the butcher’s shop on the 18 February 2023 at 4 PM and told the Complainant to “sell everything, lock up and put the key through the letterbox”.

The Respondent told the Complainant that the shop was closing permanently and would not open again. The Complainant did not receive any notice payment or pay in lieu of notice. This amounted to two weeks’ pay.

CA-00057772-004

This complaint was that the Complainant did not receive his annual leave entitlement for 2022 or 2023.

He explained that the butcher shop only closed for Christmas and Easter Sunday. He only received annual leave for Christmas Day, St Stephen's Day and Easter Sunday which were public holidays in any event.

The Complainant's evidence was he asked the Respondent for holidays, but he was told that it was very difficult to get a butcher to cover his holiday leave. The Respondent never organised replacement cover for the Complainant to take his holidays.

The Complainant sought annual leave of 20 days from the 13 July 2020 to the 31 March 2021. He thought a further 20 days arising from 1 April 2021 to 31 March 2022 and a further 20 days arising from 1 April 2022 to 18 February 2023.

He calculated that his annual leave entitlement for 2022 amounted to €1808 and that his annual leave entitlement for 2023 amounted to €488.16.

He also sought compensation in light of the continuous breaches of his rights under the Organisation of Working Time Act 1997.

CA-00057772-005

This complaint was that the Complainant did not receive his public holiday entitlement for 2022 or 2023. The butcher shop was open every day including public holidays apart from Christmas Day, St Stephen's Day and Easter Sunday. Apart from these days, the Complainant worked all of the other public holidays. The Complainant did not receive any pay in lieu. Which he calculated amounted to €840.

He also sought compensation in light of the continual breach of his rights under the Organisation of Working Time Act 1997.

CA-00057772-006

This complaint was that the Complainant did not receive his redundancy payment. He sought a redundancy payment from the Respondent. The respondent did not respond apply to any letters, text messages or emails sent to him. They Complainant did not receive his redundancy payment.

CA-00057772-007. This complaint was under the Payment of Wages Act 1991.

The Complainant was not paid for the last day that he worked. This was the 18 February 2023. This was a Saturday. He worked eight hours that day. At an hourly rate of €11.30, the amount due was €90.40.

The Complainant also worked a week in hand. This means that he did not get paid for the first week that he worked when he commenced employment, and this was carried forward every week on the agreement that he would be paid the last week on the ending of his employment.

Summary of Respondent’s Case:

There was no attendance for the Respondent.

Findings and Conclusions:

CA-00057772-001. This complaint is under the National Minimum wage.

The uncontested submission of the Complainant must, in the absence of the Respondent, be taken as an accurate account of the wages he received and the hours he worked while in employment.

The Workplace Relations Act 2015 at section 6 states:

(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.

(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.

The complaint was lodged on the 18 July 2023. The cognisable period for the purpose of the Act is 17 January 2023 to the 18 July 2023. No application was made by the Complainant to extend the cognizable period and and no explanation was given as to why a complaint was not made earlier than the 18 July 2023.

I find that the Complainant did make a request within the requirement of section 23 of the National Minimum Wage Act.

The hourly minimum rate of pay during the cognisable period was €11.30.

The Complainant's representative provided a helpful table setting out the hourly rate that the Complainant would have received on his long week and his short week, had he received the national minimum wage. His weekly payment on his long week was €110.36 below what he should have received and on his short week €22.56 below what he should have received. It was calculated the Complainant worked 7 weeks in 2023.

This complaint is well founded and I find that the Complainant was underpaid a total of 4 weeks at €110.36 and three weeks at €22.56. which amounts in total to €509.12 for the relevant period. I also award the Complainant the sum of €750 compensation for breaches of the legislation.

CA-00057772-003 This complaint was that he did not receive his notice payment. This complaint is well founded and I award the Complainant is pay in lieu of notice which amounts to €1220.40.

CA-00057772-004 This complaint was that he did not receive his annual leave entitlement. The complaint was lodged on the 18 July 2023. The cognisable period for the purpose of the Act is 17 January 2023 to the 18 July 2023 with the Complainant ending work on the 18 February 2023. This period is within the annual leave year of 1 April 2022 to 31 March 2023. Based on the hours worked by the Complainant I calculate that he was entitled to his full annual leave entitlement of 20 days on the termination of his employment. This complaint is well founded and I award the Complainant is outstanding annual leave for 2022/2023 of €1800.80. I also award the Complainant the sum of €750 compensation for breaches of the legislation.

CA-00057772-005 This complaint was that he did not receive his public holidays. The complaint was lodged on the 18 July 2023. The cognisable period for the purpose of the Act is 17 January 2023 to the 18 July 2023 with the Complainant ending work on the 18 February 2023. The Complainant's evidence was that he was not paid on St Bridget’s Day (6 February 2023). This complaint is well founded and I award the Complainant a payment of €90.40.

CA-00057772-006. This complaint was that he did not receive his Redundancy payment.

I am satisfied the Complainant’s situation is in compliance with section 2(a) of the Redundancy Payments Acts. The business has ceased trading and to carry on business in the place where the Complainant was employed and his work has ceased. I am satisfied the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts, 1967-2014. I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his redundancy at the date of hearing.

CA-00057772-007 This complaint was that he was not paid for the last day of employment or that he did not receive his week in hand.

This complaint is well founded and I award the Complainant the sum of €90.40 for his last working day and also the sum of €610.20 for his week in hand.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(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-00057772-001. This complaint is under the National Minimum wage.

CA-00057772-003 This complaint was that he did not receive his notice payment. This complaint is well founded and I award the Complainant is pay in lieu of notice which amounts to €1220.40.

CA-00057772-004 This complaint was that he did not receive his annual leave entitlement. This complaint is well founded and I award the Complainant is outstanding annual leave for 2022/2023 of €1800.80. I also award the Complainant the sum of €750 compensation for breaches of the legislation.

CA-00057772-005 This complaint was that he did not receive his public holidays. This complaint is well founded and I award the Complainant a payment of €90.40.

CA-00057772-006. This complaint was that he did not receive his Redundancy payment. This complaint is well founded. In circumstances where the Respondent has ceased to carry on business where the Complainant was employed, I find a redundancy situation applies and I find the claim for a redundancy payment to be well-founded. The Complainant is entitled to a redundancy payment based on the following facts established in evidence:

Commencement date: 13 July 2020

End of employment: 18 February 2023

Gross weekly pay: €610.20 (average of long week and short week)

Any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952-1966.

CA-00057772-007 This complaint was that he was not paid for the last day of employment or that he did not receive his week in hand.

This complaint is well founded, and I award the Complainant the sum of €90.40 for his last working day and also the sum of €610.20 for his week in hand.

Dated: 09/07/2024

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Key Words:

Breach of national minimum wage act