Complainant

Respondent

Parties

Serbain Ioan Chiheri

Pharmtrans Direct Limited

Representatives

Mr John Hayden 

Not represented

Act

Complaint 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-00058296-004

14/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058296-005

14/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058296-006

14/08/2023

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

CA-00058296-007

14/08/2023

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

CA-00058296-008

14/08/2023

The respondent is a van delivery business.  Until June 16th 2023, they had a contract to deliver pharmaceutical products for Uniphar, a pharmaceutical supply chain company.  Twelve drivers were employed to do this work, supported by an office administrator.  One of the drivers had the role of manager.

The complainant commenced working for the respondent on December 5th 2022.  He earned €2,185 gross per month.  His net pay was €2,010.

The drivers were paid on the 16th of each month.  Around 10.00am on Friday, June 16th 2023, they received a text message from the office administrator informing them that there had been a technical error in the bank and that wages would not be paid.  The administrator said that it would be sorted out the following week.  She said that the director, Mr Saul, was travelling home from Spain and that he would lodge money to the company’s bank account so that each employee could be paid €500 to keep them going until the bank problem was resolved.

On the morning that they heard that there was a problem with their wages, the drivers exchanged phone calls and text messages and they considered stopping work.  Based on the offer to pay them €500 as an interim payment, they decided to continue working. 

In his evidence at the hearing, Mr Hayden said that, around 4.15pm on Friday, June 16th 2023, he got a telephone call from the transport manager in Uniphar.  The manager told Mr Hayden that their employer, Pharmtrans Direct Limited had ceased trading.  He offered the 12 drivers an opportunity to start work the following Monday for Alltrans, a company with a contract to deliver for Uniphar.

Another driver, Mr Brian Kelly also said that he got a call from the manager of Uniphar who told him that he wouldn’t be dealing with Pharmtrans Direct any longer.  Mr Kelly was offered a job with Alltrans, but he said, “no thanks."  He said that he lost faith in Pharmtrans Direct and Uniphar and he decided not to go to work for Alltrans.  He found another job five weeks later.

Michael Cahill is the manager of the drivers.  He said that he was getting calls from the drivers all morning on June 16th about the wages problem.  He spoke to the office administrator and she told him about the plan to pay everyone €500 until the wages were sorted out.  Mr Cahill said that he had left work early that day to go to a concert in Malahide.  Around 6.00pm, the manager from Uniphar phoned him to offer him a job with Alltrans.  At first, he said that he didn’t accept the offer.  However, he then heard that Alltrans were offering a loan of €1,500 to make up for the wages not paid by Pharmtrans Direct, and he decided to accept the job.  He said that the drivers are now paid weekly and they are paying back the loan at €28.00 every week.

The complainant claims that he was dismissed on June 16th 2023, and that his dismissal was unfair.  As he has less than one year of service, he has no entitlements under the Unfair Dismissals Act or the Redundancy Payments Act.  He claims that, in contravention of s.5 of the Payment of Wages Act 1991, his employer failed to pay him wages that were due on June 16th 2023, and pay for holidays not taken at the termination of his employment.  He also claims an entitlement to pay in lieu of notice. 

No evidence was given by the respondent’s side at this hearing.

CA-00058296-004:  Complaint Regarding the Failure to Pay in Lieu of Notice

There was no dispute at the hearing regarding the fact that the complainant got no notice of the termination of his employment and his complaint in this regard is well founded.

CA-00058296-005:  Complaint Regarding Rights During Notice

The complainant ticked the box for this complaint on the form he submitted to the WRC.  This concerns the rights of an employee when they are on notice that their employment will terminate on a certain date.  The complainant received no notice that his employment was about to end and, for this reason, this complaint cannot succeed.

CA-00058296-006:  Complaint Regarding Rights During Notice

This complaint relates to a breach of s.5 of the Minimum Notice and Terms of Employment Act and is concerned with a contravention of the Second Schedule of the Minimum Notice and Terms of Employment Act regarding the rights of an employee to work their normal hours during their notice.  As the complainant did not receive any notice, his complaint under section cannot be upheld.

CA-00058296-007:  Complaint Regarding the Non-Payment of Wages

Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable:

(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.

At the hearing, there was no dispute between the parties regarding the failure of the respondent to pay the complainant the wages that were due to him on June 16th 2023.  Based on the evidence, I am satisfied that, on June 16th 2023, the complainant suffered an illegal shortfall in his wages of €2,185 gross, or €2,010 net.

At the termination of his employment the complainant said that he did not receive holiday pay due to him of €500.  The respondent did not attend the hearing and did not submit any records of the complainant’s holidays. 

Based on the evidence of the complainant, I am satisfied that he is entitled to pay for holidays not taken at the termination of his employment.

CA-00058296-008:  Complaint Regarding the Failure to Pay in Lieu of Notice

On the form he submitted to the WRC, the complainant indicated that this complaint is about non-payment of pay in lieu of notice.  This complaint is considered under the reference number CA-00058296-004 above.

CA-00058296-004:  Complaint Regarding the Failure to Pay in Lieu of Notice

I decide that this complaint is well founded.  The complainant worked for the respondent for 25 weeks.  In accordance with s.4 of the Minimum Notice and Terms of Employment Act 1973, he is entitled to one weeks’ notice.  I therefore direct the respondent to pay the complainant compensation of €504.23.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00058296-005 and 006:  Complaint Regarding Rights During Notice

I decide that these complaints are not well founded.

CA-00058296-007:  Complaint Regarding the Non-Payment of Wages

I decide that this complaint is well founded.  In accordance with section 6 of the Payment of Wages Act (as amended), I am required to direct the respondent to pay compensation as a net amount.  I decide therefore, that the respondent is to pay the complainant compensation of €2,510, comprising the net amount of wages and pay for holidays not taken at the date of termination.  This is a net amount and is not subject to deductions for tax, PRSI or USC.

CA-00058296-008:  Complaint Regarding the Failure to Pay in Lieu of Notice

This complaint is considered under CA-00058296-004 above.

Summary of Redress Awarded

In summary, I direct the respondent to pay the complainant compensation of €3,014.23 which is not subject to deductions.

Company ceased trading, unfair dismissal, redundancy, non-payment of wages, non-payment of holidays, minimum notice