Complainant

Respondent

Parties

Dong  Guo

Recovery At Home

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Éinde O’Donnell,  Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059806-001

04/11/2023

The Complainant commenced employment with the Respondent on 06/09/2023 as an Executive Assistant.  On 09/10/2023 there was a meeting between the Complainant and his employer and at the end of this it is alleged that he submitted his resignation.  The Complainant submits that he gave one week’s notice to the Respondent and the Respondent submits that his resignation took place with immediate effect.  The Complainant submits that he is due one week’s wages.

The Complainant gave evidence on affirmation.  He outlined that he tendered his resignation on 09/10/2023 and gave the Respondent a week’s notice.  He was told that his resignation would be effective immediately and he was not paid in lieu of his weeks’ notice.  The Complainant believes that this is in breach of the notice requirements in his contract of employment. 

The relevant section in the contract of employment states:  “Notwithstanding the terms of this Agreement, the Company reserves the right to terminate this agreement on a no-fault basis on the giving of 2 weeks’ notice in writing or such longer period as may be required by law.  Where the Company exercises its right to pay in lieu of notice, the Appointment will terminate with immediate effect and the Employee will not be entitled to any further payments or benefits from the Company (other than the amounts accrued at the date of termination).”

The contract of employment also deals with notice period during probation:

“During the probationary period (including any extension of the probationary period), except in the case of gross misconduct, either Party, upon giving one week’s notice in writing, can terminate this Agreement.  In such circumstances, the Company reserves the right to pay in lieu of the Employee’s notice”.

The Complainant outlined that the context of his resignation was that he has asked to meet with Ms McDonnell on 09/10/2023 but this did not happen until after 5.00pm on that day.  The Complainant outlined that this was a “highly distressing incident at the workplace”.  The Complainant gave evidence that he was shouted at for a period of time about issues which he did not consider to be part of his role.  As a result of this incident, he felt that he could no longer work with Ms McDonnell, and he verbally resigned and gave a week’s notice.  The Complainant submits that Ms McDonnell stated that his resignation would have immediate effect and he was instructed to leave the workplace.  When the Complainant received his pay, he did not receive the expected payment as “the CEO had expedited my resignation without observing the notice period”.    The Complainant gave evidence that his follow up attempts to obtain the payment were unsuccessful and he then submitted his complaint to the Workplace Relations Commission.  After he left on 09/10/2023 his work e mail and access was removed.

The Complainant was cross examined on behalf of the Respondent.  He denied that he gave his laptop back on 09/10/2023 and outlined that he was using his own laptop in work and the one he was issued with was used by another employee.  It was put to the Complainant that when he left and was using his own laptop to access the work systems it was reasonable for the Respondent to remove his access to their systems.  The Complainant agreed that this was understandable.

The Complainant was asked if he shredded his work ID card on 09/10/2023 and he confirmed that he did.  He was asked if he was requested by Ms McDonnell not to shred it and he stated that he shredded his card as he was aware that the ID cards for  other employees who left were being used and he did not want his to be used in this manner.  The Complainant was asked if the shredder was broken by him when he shredded the ID card and he stated that he was not aware of this.

In closing his contribution, the Complainant stated that when he informed Ms McDonnell that he was resigning it was she who decided that it would have been with immediate effect and requested him to leave the office.  He did not make any decision to resign immediately, and he confirmed this in his e mail by giving a week’s notice.

Ms Audrey McDonnell gave evidence on oath on behalf of the Respondent.  She gave evidence that she is the founder and CEO of the Respondent organisation.  She recalled the details of what happened on 09/10/2023. She stated that there was a serious incident the previous day and the Complainant did not bring this to her attention.  When she spoke with him and explained the seriousness of the matter, he pushed his laptop into her hand and said that he was resigning.   Ms McDonnell stated that she asked the Complainant if this was with immediate effect, and he confirmed that it was.   She spoke to him about company property, and he shredded his ID card despite her asking him not to so do.  Ms McDonnell stated that the Complainant confirmed his resignation in an e mail later that evening.  Ms McDonnell gave evidence that the shredder was damaged by the shredding of the ID card as it only accepts a small number of pages at a time.  Ms McDonnell confirmed that she authorised that the Complainant’s access to his work e mail account and systems would be stopped.  She explained that the Complainant had access to her e mail account and access to patient data on the systems and she had a duty to protect this.  Ms McDonnell stated that when she tried to e mail the Complainant it appeared that he had blocked her from his account and for that reason she asked her PA to send her e mail to him confirming that she had accepted his resignation.

Ms McDonnell was cross examined by the Complainant.  She was asked what laptop she got from the Complainant, and she stated that it was the one he was issued with when he commenced employment.  Ms McDonnell was asked where the laptop was, and she stated that she was not aware of where it was.   Ms McDonell was asked if it was her evidence that the Complainant blocked her e-mails and she stated that it appeared that way and that was why she got her PA to send her e mail to him.

Mr Aaron McDonagh gave evidence on oath on behalf of the Respondent.  Mr McDonagh confirmed that he no longer works for the Respondent and was somewhat reluctant to attend the hearing.  When employed by the Respondent he was the Duty Co-Ordinator.

Mr McDonagh gave evidence that he was present when the conversation between the Complainant and Ms McDonnell took place on 09/10/2023.  Mr McDonagh stated that he was in an office while the Complainant and Ms McDonnell were just outside the door space.  He was aware that Ms McDonnell was not happy with the Complainant not informing her about an e mail he had received regarding an incident.  Mr McDonagh stated that the Complainant handed a laptop to Ms McDonnell, and he saw Ms McDonnell with the laptop.  Mr McDonagh stated that the Complainant said that he was resigning, and Ms McDonnell asked him if that was with immediate effect and the Complainant stated that it was.  Mr McDonagh gave evidence that the Complainant shredded his ID card in the shredder in his office.  Mr McDonagh stated that the shredder was broken after the ID card was put through it.

Mr McDonagh was cross examined by the Complainant.  He was asked if the heard the Complainant state that he was resigning with immediate effect.  Mr McDonagh clarified that what he heard was the Complainant stating that he was resigning and when Ms McDonnell asked him if it was with immediate effect, he confirmed that it was.

It was put to Mr McDonagh that he rang the Complainant the following day and asked him he had left and that was strange if he had heard him tell Ms McDonnell that he was resigning.  Mr McDonagh stated that he had no recollection of phoning the Complainant the following day.  It was put to Mr McDonagh that the Complainant had evidence of having received a call from him and Mr McDonagh confirmed that he had no recollection of making such a call.

Mr McDonagh was asked when he heard the Complainant state to Ms McDonnell that he was resigning, and he confirmed that he was in the office he used, and the Complainant and Ms McDonnell were outside the door area, and he heard the conversation.  Mr McDonagh stated that when he said he was present he was saying that he was present in the office area.

Mr McDonagh was asked if he was asked to sign a witness letter by Ms McDonnell and he stated that he was not asked to do so.  Mr McDonagh was asked if he sent the Complainant a text message about Ms McDonnell and he stated that he did not.

The Complainant stated that he was concerned at the conflicting evidence given by the Respondent’s witnesses and requested the Adjudication Officer to consider this very seriously.  It was clarified that the complaint to be addressed was a payment of wages complaint.  The Complainant was advised by the Adjudication Officer that he could not use the cross examination to launch allegations and introduce matters which were outside the scope of his payment of wages complaint.

It is the Respondent’s position that the Complainant terminated his contract while on probation and his contract of employment states:  “During the probationary period (including any extension of the probationary period), except in the case of gross misconduct, either Party, upon giving one week’s notice in writing, can terminate this Agreement.  In such circumstances, the Company reserves the right to pay in lieu of the Employee’s notice”.

The Respondent submits that the actions of the Complainant on 09/10/23 clearly show that he resigned immediately.  He handed his laptop back to Ms McDonnell and shredded his ID card and then left the workplace and did not return. 

The Complainant, in his written submissions, and at the hearing outlined that he wished to raise a number of other matters in connection with his employment with the respondent.  He was informed by the Adjudication Officer that the hearing was specifically  a complaint seeking Adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.  The Adjudication Officer does not have jurisdiction to inquire into other matters which are not the subject of a complaint to the Workplace Relations Commission.

By way of a preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment.

I find that the Complainant’s Workplace Relations Complaint Form dated 04/11/2023 was submitted within the time allowed.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(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.

(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.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. The starting point for assessing what is properly payable is the contract of employment.

In this case, the Complainant asserts that his contractual entitlement to a payment arises from the following clauses in the contract of employment:

“Notwithstanding the terms of this Agreement, the Company reserves the right to terminate this agreement on a no-fault basis on the giving of 2 weeks’ notice in writing or such longer period as may be required by law.  Where the Company exercises its right to pay in lieu of notice, the Appointment will terminate with immediate effect and the Employee will not be entitled to any further payments or benefits from the Company (other than the amounts accrued at the date of termination).”

“During the probationary period (including any extension of the probationary period), except in the case of gross misconduct, either Party, upon giving one week’s notice in writing, can terminate this Agreement.  In such circumstances, the Company reserves the right to pay in lieu of the Employee’s notice”.

The Respondent asserts that the Complainant’s resignation was with immediate effect and in such circumstances the Respondent is not liable to pay the Complainant any sum.

The issue then is did the Complainant resign with immediate effect or did the Respondent accept his resignation with immediate effect?  There is a clear conflict of evidence between the Complainant and the Respondent’s witnesses in relation to what was said at the meeting on 09/10/2023.  It is not disputed that the Complainant shred his ID card, returned his laptop and left the premises.  

Later that evening (09/10/23). the Complainant sent an e mail to the Respondent stated that “After much reflection, I have come to the decision to tender my resignation, effective one week from today on 9th October 2023”.

The Respondent replied the following day stating:  “Your resignation was tendered today by you with immediate notice to me and was accepted. Your departure was immediate, and self-prompted with the destruction of company property.

Please accept this e mail as a further acceptance of your tendered resignation 9/10/23 with immediate effect for all purposes such as benefits claims etc.”

The Complainant replied and clarified a number of matters including that he verbally communicated his intention to resign by giving a week’s notice and that it was the Respondent who decided that this was with immediate effect.

Having considered the evidence and submissions of the parties it is clear that the contract of employment states that any notice to terminate the contract of employment must be in writing.  This applies at clause 4.3 which deals with the termination of the contract during the probationary period and again at clause 18.3 which provided for two weeks’ notice in circumstances where the company decided to terminate the contract of employment. There is no provision which enables the Respondent or the Complainant to waive or substitute the notice requirement to a verbal notification.

The only written evidence confirming the Complainant’s intention to resign was the e mail sent at 9.14pm on 09/10/2023.  The Respondent’s e mail of 10/09/2023 is a “further acceptance” of the Complainant’s resignation and this can only be deemed to be an acceptance of his written notice of resignation.  I do accept that the Complainant did contribute to the initial confusion in relation to the application of the resignation notice. I find that the Complainant has complied with the notice provision outlined in his contract of employment.

Was there a shortfall in payment?

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section.

The Complainant is entitled, under the provisions of his contract of employment, to have one week’s pay in lieu of notice and I find that there was a shortfall in payment.

At the hearing it was confirmed and agreed that the Complainant’s weekly gross pay was €673.00 and I find that the complaint is well founded.

I find that this complaint is well founded, and I order the Respondent to pay the Complainant the sum of €673.00.  This amount to be paid within 42 days of the date of this decision.

Deduction of wages.  Properly payable.