ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051832
Parties:
| Complainant | Respondent |
Parties | Patrick Gerard Ruane | Lifetime Care Ltd |
Representatives | Self | No attendance |
Complaint(s):
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 Unpaid wages | CA-00063390-001 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 Duplicate claim | CA-00063390-002 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00063390-003 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 Duplicate Claim | CA-00063390-004 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 Duplicate Claim | CA-00063390-005 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00063390-006 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Duplicate Complaint | CA-00063390-007 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Duplicate Complaint | CA-00063390-008 | 03/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Holiday Pay and Sunday Premium | CA-00063390-009 | 03/05/2024 |
Date of Adjudication Hearing: 03/10/2024
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967 -2014 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.
Written notification of the hearing was issued to the address provided. Other efforts made to contact the Respondent in this and other cases were unsuccessful. The Complainant had tried to make contact by phone but said the number appeared to have been blocked off. The notice of termination issued by Mr Ken O ‘Sullivan to employees on October 5th, 2023, contained no contact details. He made no contact with the Complainant in relation to unpaid statutory entitlements after the notice of termination was issued via a Whats App message. I am satisfied that the Complainant and the WRC made every reasonable effort to contact the Respondent about the matters which are the subject of these complaints.
The Complainant provided sworn evidence at the hearing. In that evidence he outlined how he submitted his complaints to the WRC and received confirmation of receipt on October 19th, 2023. He was later contacted about the address for the Respondent as the papers issued by the WRC were returned. In 2024 he was informed by the WRC that as he had not replied to a request for further information related to his form submitted in 2023 that complaint was closed. It is his evidence that he received no further information from the WRC and no request for further information in relation to the October document. He provided a copy of the email of October 19th, 2023, received from the WRC confirming that his complaint was successfully received by the WRC. The Complainant then submitted a second complaint form on May 3rd, 2024, and it is that complaint form which was assigned for the hearing under ADJ-00051832. The matter of time limits is addressed in the Findings and Conclusions below.
Background:
The Complainant was employed by Lifetime Care Ltd as a care worker. The details of the employment history are as set out. On October 5th, 2023, the Complainant and other employees of the Respondent were informed in a Whats App message from Mr. Ken O Sullivan that their employment was ending and the business ceasing with immediate effect. Reference was made to issues with Revenue linked to a termination of the HSE payments. There was no further contact from Lifetime Care Ltd regarding outstanding wages or statutory entitlements. The Complainant went to the business address in Craughwell County Galway, but it was closed. He also rang Mr. O Sullivan, but the phone appeared to be either blocked off or discontinued.
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Summary of Complainant’s Case:
The Complainant thought he had commenced employment with the Respondent in 2014 but was unable to locate any Revenue documentation containing dates prior to January 2015. The date used for the purposes of these complaints, where relevant, is January 25th, 2015. Average Gross pay as evidenced by the Complainant was €600.00 per week, gross CA-00063390-001 Payment of Wages Act 1991-unpaid wages. The Complainant (and other employees) were not paid their wages for the final three weeks of their employment. The total gross amount withheld was €508.42 nett x 3 amounting to €1525.26 The Complainant does not recall receiving any written statement of terms of employment. CA-00063390-003 Redundancy Payments Act 1967 The Complainant seeks payment of statutory redundancy as he was dismissed by Lifetime Care Ltd by way of redundancy. CA-00063390-006 Minimum Notice and Terms of Employment Act 1973 The Complainant seeks payment of his statutory entitlement to pay in lieu of notice as he was dismissed without notice or payment in lieu of same. CA-00063390-009 Organisation of Working Time Act 1997 Holiday Pay The payslips issued by Lifetime Care Ltd made no distinction between ordinary pay and holiday pay. The Complainant was asked to check his roster documents and to provide details of holidays taken between January and October 2023 for which he was paid. He was unable to locate any emails on this subject. Sunday Premium The Complainant stated he received a flat payment of €15 for every hour worked including Sunday. He had no written statement which referred to Sunday Pay. Following the hearing the Complainant provided details of the Sundays worked in the six months prior to the date of termination -i.e., 5 October 2023 amounting to 71.5 hours worked. |
Summary of Respondent’s Case:
There was no attendance at the hearing or other engagement with the WRC to provide information regarding the matters under consideration. The immediate cessation of the business of the Respondent and the consistency of information provided by several complainants lends credibility to the complaints in this instance together with the information and evidence provided by the Complainant. |
Findings and Conclusions:
Time line for submission of complaints. The Complainant has provided documentary evidence of confirmation by the WRC of receipt of his original complaint form in October 2023. Sometime after that date, the WRC decided to close the October complaint on the basis as advised to the Complainant, that he had not replied to previous correspondence issued to him. He denies receiving any such communication. As I have not been provided with either the legal basis on which the WRC made the decision to close the file on the October complaint or of any communication from the WRC to the Complainant about that complaint or the closure of the file, I am satisfied to accept the Complainants written and oral evidence on this aspect i.e. that he did indeed submit the first complaint and received no correspondence from the WRC about that complaint form. Given that the complaint referred for hearing under ADJ-00051832 is that received on 3rd May 2024, the simplest approach is to extend the initial period of six months provided for in Section 41 of the Workplace Relations Act 2015 to a period including 3rd May 2024 on the basis that there are reasonable grounds for doing so as provided for in Section 41(8) of the Act.(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. Substance of the Complaints The immediate cessation of the business of the Respondent and the consistency of information provided by several complainants lends credibility to the complaints in this instance together with the information and evidence provided by the Complainant. The findings and related decisions in favour of the Complainant are fully justified by way of the available evidence. CA-00063390-001 Payment of Wages Act 1991-unpaid wages This complaint is well founded. The amount due to the Complainant is as per the Decision below. CA-00063390-003 Redundancy Payments Act 1967This appeal against the failure and therefore implied refusal of the Respondent to pay the Complainants statutory entitlements is upheld on the basis set out in the Decision below. The wages claimed by the Complainant was €600 per week gross and his payslips indicate this is an accurate average figure. CA-00063390-006 Minimum Notice and Terms of Employment Act 1973The Complainant was entitled to receive four weeks pay in lieu of notice on the basis that he had at the time between five and ten years service. The multiple used is €600 gross per week. CA-00063390-009 Organisation of Working Time Act 1997 Holiday pay. Payslips in this employment did not specify payments for annual leave. The Complainant could not recall any paid annual leave in 2023.Following the hearing the Complainant indicated that he could not find any emails about paid time off in 2023. Noting Mr Ruane’s comments in his post hearing email, I am of the view that there was almost certainly a shortfall in paid annual leave received between January and October 2023 versus the statutory entitlements for that period and consider the equivalent of one weeks gross pay of €600 to be a fair assessment of his unpaid entitlement. Sunday Premium The evidence of the Complainant that he received a single flat rate of pay for all hours worked is accepted. In the absence of a contract stipulating that the hourly rate includes payment for Sunday work, I find that there was no such agreed term between the parties. Based on the available evidence I consider an amount of €2 per hour as an additional payment for Sundays worked during the cognisable period to be reasonable. In making a limited award I am conscious that this is not an issue which was raised during the employment. |
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.
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-00063390-001 Payment of Wages Act 1991-unpaid wages. This complaint by Patrick Ruane against the Respondent Lifetime Care Limited is well founded. The amount due to the Complainant is €1525.26 nett. CA-00063390-003 Redundancy Payments Act 1967.The appeal against the decision of the Respondent to pay the Complainant Patrick Ruane statutory redundancy is upheld. Payment to be based on the following details, subject to the employment being insurable: Date of Commencement; 25 January 2015 Date of Termination of Employment: 05 October 2023 Average rate of weekly pay €600 gross Payment is subject to this being insurable employment. CA-00063390-006 Minimum Notice and Terms of Employment Act 1973This complaint by Patrick Ruane against Lifetime Care Ltd in relation to unpaid statutory notice pay is well founded. The amount due to Patrick Ruane under this Decision is €2400 CA-00063390-009 Organisation of Working Time Act 1997 Holiday Pay This complaint by Patrick Ruane is well founded. The amount due to the Complainant under this Decision is €600 Sunday Premium This complaint is well founded. The amount of compensation to be paid to Patrick Ruane under this Decision is €143 |
Dated: 11-10-2024
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Sunday Premium/Holiday Pay/Pay in lieu of notice/Wages withheld : Extension of time limit allowed. Redundancy Pay |