ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051334
Parties:
| Complainant | Respondent |
Parties | Ciara O'Connor | MJ Flanagan Limited |
Representatives | Self-Represented | Brendan Whittle |
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-00061998-001 | 26/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 | CA-00061998-002 | 26/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00061998-003 | 26/02/2024 |
Date of Adjudication Hearing: 18/07/2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of a remote hearing on the 18th July 2024 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
At the adjudication hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the WRC are now held in public and, in most cases decisions are not anonymised. Neither party objected to the hearing being held in public and having their names listed in the decision when published on the WRC website.
The parties are named in the heading of the decision. For ease of reference, for the remainder of the document I will refer to Ciara O’Connor as the “the Complainant” and MJ Flanagan Limited as “the Respondent”.
The Complainant represented herself and the Respondent was represented by Brendan Whittle.
Mr. Whittle provided the correct legal name for the Respondent which is cited on consent in this Decision.
The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation from the parties prior to the hearing. All evidence and supporting documentation presented by the parties has been taken into consideration.
Background:
The Complainant seeks payment in lieu of minimum notice and one day’s holiday pay. The Respondent does not dispute the Complainant’s complaints. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent as a fish merchant from the first week of January 2019 to the 16th February 2024. The Complainant worked 24 hours per week and her weekly wage was €316.80. The business closed without providing her with statutory notice and one day’s holiday pay. |
Summary of Respondent’s Case:
The Respondent does not dispute the complaints. Due to financial difficulties, the business could only pay the employees their wages up to the date of closure. |
Findings and Conclusions:
In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing. CA-00061998-001 - Minimum Notice and Terms of Employment Act 1973 The Relevant Law Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 provides that minimum notice be given by an employer to terminate the contract of his employee (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, The Complainant advised the hearing that she was employed by the Respondent from the first week of January 2019 to the 16th February 2024. The Respondent did not dispute the Complainant’s complaint. I am satisfied that the Complainant in this case is entitled to 4 weeks’ notice pay. I am also satisfied from the evidence adduced that the Complainant did not receive her entitlement of 4 weeks’ notice or payment in lieu of notice. Accordingly, I find this complaint to be well founded. CA-00061998-002 – Payment of Wages Act 1991 Relevant Law: In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991 as amended (hereinafter referred to as “the 1991 Act”). Section 1 of the 1991 provides the following definition of wages: "wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and … The above definition includes holiday pay. Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers. Section 5(1) of the 1991 Act provides as follows: 5(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. Section 5(6) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid: 5(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. The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer. The question to be decided is whether the wages claimed were properly payable. The Complainant claimed that she is due one day’s holiday pay. The Respondent accepted that the Complainant was due one day’s holiday pay. I find that the wages claimed by the Complainant were properly payable to her and that she is due payment of accrued annual leave entitlement of one day. Accordingly, I find that the complaint concerning the unlawful deduction of wages due is well founded. CA-00061998-003 – Organisation of Working Time Act 1997 This complaint was withdrawn at the hearing.
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Decision:
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-00061998-001 - Minimum Notice and Terms of Employment Act 1973 I decide that this complaint is well founded and I direct the Respondent to pay to the Complainant the sum of €1,226.88 representing 4 weeks’ wages. CA-00061998-002 – Payment of Wages Act 1991 I decide that this complaint is well founded and I direct the Respondent to pay to the Complainant the sum of €102.24 representing one day’s wages. CA-00061998-003 – Organisation of Working Time Act 1997 This complaint was withdrawn at the hearing. |
Dated: 22-07-2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Key Words:
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