ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052661
Parties:
| Complainant | Respondent |
Parties | Jimmy Phelan | Pearl Technology Software Ie Limited trading as Pearl Technologies Limited |
Representatives | Tim Harnedy, BL. | Unrepresented |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00064570-001 | 04/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064570-002 | 04/07/2024 |
Date of Adjudication Hearing: 16/10/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 8 of the Unfair Dismissals Acts, 1977 - 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 and to present any evidence relevant to the complaints. The hearing was held in the Hearing Rooms, Workplace Relations Commission (WRC), Carlow. Mr Phelan, the complainant, attended the hearing with Mr Morgan, Morgan Solicitors and Mr Tim Harnedy, BL. As no representative of the respondent was in attendance, I delayed the commencement of the hearing for 15 minutes. There was no attendance by the respondent. The complainant gave evidence under oath.
Background:
The complainant was employed as an IT Infrastructure Architect with the respondent from 24th April 2023 to 13th May 2024 when he was dismissed. He was paid €7,685.31 per month. His complaint is unfair dismissal. His second complaint is that he was not paid his annual bonus. |
Summary of Complainant’s Case:
Summary of Mr Phelan’s (complainant’s) Evidence The complainant gave evidence that he was successful at interview and began the employment on 24th April 2023. He had signed the contract earlier in March 2023. He had left a previous job prior to accepting this employment. He passed his probationary period and got confirmation of this in writing. He said he needed this confirmation as he was applying for a mortgage. He put into evidence a clause in his contract of a 10% bonus. He enquired about this after the Christmas break and was informed it would be paid and administered by the Human Resources section. He said the amount was significant and was one of the reasons why he joined the company. The bonus was worth €9,000 as he was earning €90,000 per year. He commenced payments of 5% into a pension fund in June 2023. The company also contributed 5%. When his employment ended, he was refunded his contributions, and the company were refunded theirs which amounted to €3,769.26. He normally worked by himself in the mornings before online meetings with colleagues/clients in the afternoon. He said he was working on four projects. On 13th May 2024, he received a phone call around 2pm from the Human Resources section. He was informed that his employment was terminating with immediate effect. He was disconnected from the company infrastructure which he normally used to communicate within the company. He found it difficult to establish the reasons for his dismissal. He was informed during the phone call that the reason was that he had no ongoing projects. He put into evidence a text message exchange with the company that he had four ongoing projects. His employment terminated on 13th May 2024, although he received a payment up to 13th June 2024. He said this was a difficult time for him as his employment was terminated without valid reasons. There was no procedures or process involved as he was dismissed by phone call. From June 2024, although he attended interviews, he found it difficult to explain why his last employment ended due to the unilateral decision by the respondent. He commenced new employment on August 8th, 2024, earning a salary of €95,000. He could not contribute to the pension scheme in his new employment until he completed his probation. |
Summary of Respondent’s Case:
No representative of the respondent attended the hearing. I am satisfied that the respondent was on notice of the hearing. |
Findings and Conclusions:
Unfair Dismissal Complaint- CA-00064570-001 Section 6(1) of the Unfair Dismissals Act provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The complainant gave uncontested testimony of the circumstances of his dismissal. There was no process to outline the grounds of his dismissal other than the phone call which resulted in his immediate dismissal. There was no opportunity for the complainant to understand the reasons for his dismissal nor any opportunity to appeal the decision. The dismissal was procedurally unfair. For the reasons outlined, I find the complainant was unfairly dismissed. Redress The definition of ‘financial loss’ in section 7 of the Act provides: ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, ………….’ The complainant gave testimony that he sought another job to mitigate his loss. He commenced a new job from 8th August 2024 which paid €95,000 salary. His loss of earnings for the 8 weeks was €13,846.00. He also has a loss of €3,769.26 in that a pension contribution was refunded back to the company after his dismissal. Although there was a delay in contributing to the new pension scheme in his new employment, I do not consider this as an actual or prospective loss, particularly as his new salary was €5,000.00 more than his previous salary. I find the complainant was unfairly dismissed and that the respondent should pay €17,615.26 to the complainant. Payment of Wages Complaint- CA-00064570-002
The Payment of Wages Act 1991 (“the 1991 Act”) provides protection for employees in relation to the payment of wages. Section 1(1) of the 1991 Act defines wages in relation to an employee as meaning any sums payable to the employee by the employer in connection with his employment including- (a) Any fee, bonus, or commission.
The first issue is to establish the wages that are properly payable to the complainant. The signed contract at clause 6.4 states- ‘You will be able to receive up to 10% in performance incentives upon completion of project milestones and/or projects based on your performance and at the discretion of your direct supervisor. These incentives could be paid out to you either monthly, quarterly or annually.’ The complainant gave testimony that he passed his probation. He also testified that he queried his bonus when he returned after the Christmas break. He was informed that this would be paid and administered through the Human Resources section. For the reasons outlined, I decide that the bonus of €9,000 was properly payable after one year of employment. I decide that the respondent should pay €9,000.00 gross to the complainant for the bonus payment which was wages properly due. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Unfair Dismissal Complaint- CA-00064570-001 I find the complainant was unfairly dismissed and that the respondent should pay €17,615.26 to the complainant, the equivalent of about 9-weeks’ wages. Payment of Wages Complaint- CA-00064570-002 I decide that the respondent should pay €9,000.00 gross to the complainant for the bonus payment which was wages properly due. |
Dated: 30th of October 2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Unfair Dismissal, Payment of Wages |