Complainant

Respondent

Parties

Susan  Dwane

Bridget O’Sullivan, Beata Andreas, Ann Rogers, Blazej Kaczorowski, Sebastian Emmerling & Chenelle Dennehy as  Committee Of Rockboro School Association

Representatives

Conor White Comyn Kelleher Tobin

 Ms Bridget O’Sullivan Chairperson/Trustee, Rockboro School Association

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060667-001

21/12/2023

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

CA-00060667-002

21/12/2023

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

CA-00060667-003

21/12/2023

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

CA-00060667-004

21/12/2023

The Complainant was employed as Principal and Teacher of Rockboro School from 1 October 1990 until cessation of her employment on 7 November 2023. Her monthly salary was €4166.66; net €3035.94 The Complainant submits she was not paid her statutory redundancy sum on termination of employment contrary to the Redundancy Payments Act 1967 (“the 1967 Act”) and further that she was not paid her   monthly salary on various dates contrary  to section 5 of the Payment of Wages Act 1991 (“the 1991Act”).

The Respondent representative wished it would be noted that she and her fellow members of the Rockboro School Association, were parents and volunteers. The Respondent representative submits that the Respondent accepts that there is no dispute regarding the claims under the 1991 Act, but it was  the Respondent’s understanding  that the Complainant was to be paid the sum of €20,000 in lieu of her statutory entitlement under the 1967 Act.

CA-00060667-001 – Redundancy Payment:

The Complainant was employed as a School Principal and teacher at Rockboro Primary School for 33 years in total. She heard indirectly in or about August 2023 that the school was not re-opening for the academic year commencing September 2023 (via an email to parents). The Complainant was subsequently informed directly of the position. The Complainant received a letter from the Committee of Rockboro School informing her that her position was being made redundant. This letter was dated 31st August 2023 but was not received by the Complainant until 8th September 2023 and the Complainant submits that that is the date of notification of redundancy. The notice period which, as per the Complainant’s contract, is two months. The Complainant submits that  the termination date of her employment is the expiry of her 2-month contractual notice period on the 7 November 2023, and she is fully entitled to be paid up to and including that date. The Complainant submits she  is entitled to a statutory redundancy payment of  €40,356.00 calculated as follows:

 Employment start date 1 October 1990.  Employment end date 07 November 2023 Years 33.13 Days 471 Number of years’ service 33.12. Bonus week 1 Total weeks 67.26 Statutory entitlement 67.26 X €600.00 = €40,356.00 (Weeks multiplied by Gross weekly Wage. Gross weekly wage capped at €600).

The Complainant denied in evidence that there was ever an agreement for her to settle for €20,000 in lieu of her statutory redundancy entitlement.

CA-00060667-002 – Payment of Wages Claim:

The Complainant received no salary payment for the month of September 2023. She is usually paid on the last Friday of each month - €4,166.67 gross, €3,035.94 net.

CA-00060667-003 – Payment of Wages Claim:

The Complainant received no salary payment for the month of October 2023. She is usually paid on the last Friday of each month - €4,166.67 gross, €3,035.94 net.

CA-00060667-004 – Payment of Wages Claim:

The Complainant received no salary payment for the month of November 2023 - she should have been paid in full up to her termination date of 7 November 2023 and should have been paid on the date of termination. The Complainant calculates the outstanding pay as €1,346.15 gross.

The Respondent’s representative  wished to have it noted that the  current situation at Rockboro school  does not reflect the immense service and value it has provided over the past 50 years, nor the value it will continue to bring to the community. She emphasised that the current situation the school finds itself in  does not honour the sacrifice and efforts of those who volunteered, fundraised, and worked to purchase land and establish the first non-denominational, co-educational school in the area to benefit the community.

The Respondent representative concedes that the complaints of non-payment of due salary  under the 1991 Act are not being rebutted but maintains that it was understood that the Complainant would accept €20,000 in lieu of stator redundancy under the 1967 Act.

 The representative  gave a comprehensive account of the financial difficulties afflicting the school before its closure. She outlined that both she and the other committee members were acting in a voluntary capacity and strenuously sought to keep the private  school  operational. However, their efforts were in vain, but she wished to underline that  paying any amount that might be due from this decision would be very difficult for the Respondent  under the circumstances.

CA-00060667-001 – Redundancy Payment:

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

7(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes 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, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Based on the uncontested evidence of the Complainant regarding the redundancy date after proper notice and the effective closure of the school,  I find that she was made redundant under Section 7 (2)(a). The Respondent representative argued that she believed that the Complainant was to settle for a lesser redundancy sum  of €20,000 but accepted that there was no written document to this effect. The Complainant strenuously denied that any such agreement was reached on this and claimed she made it known to the Respondent that she was always seeking her statutory entitlement. I preferred the Complainant’s evidence on this point, and   I allow the Complainants appeal.  I award the Complainant  statutory redundancy on the following basis. Section 4.(1) of the 1967 Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

Complaints under section 5 of the Payment of Wages Act 1991 – CA:00060667 -002,-003,-004.

Section 5 of the 1991 act in its applicable parts provides:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(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.

Redress is provided at section 6 of the 1991 Act where it states:

1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or  as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tips or gratuities as the case may be (after the making of any lawful deductions therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount presented to paragraph (a), twice the former amount.

(2)

(a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

It is well established  that adjudication officers have been conferred with jurisdiction to deal with all complaints concerning non-payment of wages, where wages are  defined in section 1 of the Act  as “any sums payable to the employee by the employer in connection with his employment…” It was the uncontested evidence of the Complainant that she was not paid her salary on various dates as outlined in her evidence therefore I find that all her complaints under the Payment of Wages act 1991 were well founded.

CA-00060667-001: Redundancy Payment: 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.

I allow the Complainant’s appeal and , subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, she is  entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement: 1 October 1990

Date of Reckonable Service for Redundancy Payment Ceasing on: 7 November 2023

Gross Weekly Wage: €600 (in line with the cap under the Redundancy Payments Acts 1967-2012).

I find that the sum payable to the Complainant after calculation is €40,356.00.

Payment of Wages Complaints: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00060667-002:

I find that the complaint as outlined above was well founded, and I direct the Respondent to pay the Complainant the compensatory sum  of the net amount of wages due, which  is  €3035.94.

CA-00060667-003: 

I find that the complaint as outlined above was well founded, and I direct the Respondent to pay the Complainant the compensatory sum  of the net amount of wages due, which  is  €3035.94.

CA-00060667-004: 

I find that the complaint as outlined above was well founded, and I direct the Respondent to pay the Complainant the compensatory sum  of  wages due, which in this particular complaint  is the gross sum of   €1,346.15, less the making of any lawful deductions therefrom.

Redundancy Payments Acts 1967-2012, Payment of Wages act 1991.