Complainant

Respondent

Parties

Michael  O'Brien

Eureka Manufacturing Limited

Representatives

 The Complainant represented himself.

Did not attend.

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-00060074-001

16/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00060074-002

16/11/2023

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

CA-00060074-003

16/11/2023

The Complainant was the sole attendee. He gave evidence on affirmation.

The Complainant submitted he was not paid his fortnightly wages on the 29th of September 2023 of €480.00 contrary to section 5 of the Payment of Wages Act 1991 (“the Act”).

The Complainant worked for the Respondent from the 11th of January 2016. On the 2nd of October 2023 the Complainant attended for work and was informed by another employee that there was no more work.

The Complainant attended the hearing and gave evidence under affirmation. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form.

The Complainant commenced work with the Respondent on the 11th of January 2016. At the time that his employment ceased the Complainant was earning €480.00 gross per fortnight. The company made folding furniture, and the Complainant worked in sales and assembly.

The Complainant gave evidence that he was working 24 hours per week since August 2021. Prior to this he worked 40 hours per week. The Complainant was told the part time work was only temporary. All employees were reduced.

CA-00060074-001

The Complainant submitted he was not paid his fortnightly wages on the 29th of September 2023 of €480.00 contrary to section 5 of the Payment of Wages Act 1991 (“the Act”). He has not received his wages since. The Complainant has attempted to communicate with the Respondent but has never received a response. The Complainant submitted that he was due two weeks wages of €480.00.

On the 29th of September 2023, the Complainant worked but did not receive his wages for that fortnight as would be the norm.

CA-00060074-002

The Complainant was aware that the work was quiet due to covid etc. He accepted it was a genuine redundancy situation. The boss had been away a lot. There was no conversations or engagement by the Respondent about redundancy in advance.

On the 2nd of October 2023, the Complainant attended for work. The other employee informed him there were no wages and no more work. The Complainant collected his items and left. The other employee was made redundant as well.

The Complainant never spoke to the boss of the Respondent since September 2023 despite attempts to do via email etc. The requisite forms have not been completed. The Complainant understands the company has totally left Ireland. The boss has gone to America.

The Complainant has received no redundancy certificate and received no notice. He has not received any redundancy pay.

The Complainant has not taken up employment since. He is completing a software development course through Spring Board.

The Complainant is seeking compensation. The Complainant alleges that he was made Redundant and that his Employer never paid him Redundancy. The Complainant is seeking his redundancy entitlements under the Redundancy Payments Act, 1967, to the effect that the Complainant was made redundant and did not receive a statutory redundancy payment.

CA-00060074-003

The Complainant submitted that he received no notice about the ending of his employment. There was no conversations or engagement by the Respondent about redundancy in advance. He was aware the business was quiet prior to the 2nd of October 2023. The Complainant had attempted to contact the Respondent on numerous occasions to avail.  

The Respondent did not attend the hearing. I am satisfied that they were on notice of the hearing.

I have been requested to make a decision in this case. In reaching this decision, I have endeavoured to hear from both parties. However, the Complainant was the sole attendee at hearing.

CA-00060074-001

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.”

Section 6(1) provides

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The Complainant’s evidence is that he did not receive the wages due to him on the 29th of September 2023 for that week and the week previous. Based on the uncontested evidence that his fortnightly wages was €480.00 I am satisfied that the Complainant has failed to pay him €480 in respect of wages properly payable to him. 

CA-00060074-002

Section 7 of the Redundancy Payments Act sets out that

“(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1),an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)      the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

Section 39(15) of the Redundancy Payments Acts provides

“Any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1) (e) or 38 (1) (f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act  may appeal to the  Director General against the decision; provided however, that the  Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts”. 

On the basis of the uncontested evidence, I am satisfied the Complainant was clearly made redundant when his employment was terminated due to the business closing on the 2nd of October 2023. As he has completed more than two years of service, he is entitled to a redundancy payment.

As the Complainant gave uncontested evidence that he was employed from the 11th of January 2016 to the 2nd of October 2023, he is entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

CA-00060074-003

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides

“Minimum period of notice.

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(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,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

…”

Section 12 provides

“(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employer under section 6 may include such directions as the adjudication officer considers appropriate”

In uncontested evidence the Complainant stated he commenced work with the Respondent on the 11th of January 2016. He was only informed there was no more work on the morning of the 2nd of October 2023, when he attended for work. As he has worked for the Respondent for more than 7 years, he would have been entitled to four weeks’ notice. As he received no notice, the Complainant is entitled to pay in lieu of notice of €1,920.00.

As the Respondent did not attend the hearing none of the Complainant’s evidence was uncontested.

CA-00060074-001

I have decided that this complaint is well founded.  In accordance with section 6 of the Payment of Wages Act 1991 (as amended), I am required to direct the respondent to pay compensation as a net amount.  Unless provided for as a contractual entitlement, pay in lieu of notice is not subject to tax.  The Complainant’s moderate wages were such that little or no deductions were made.  Based on the information available to me at the hearing of this complaint, I direct the Respondent to pay the Complainant compensation of €480 in relation to wages.

CA-00060074-002

I have decided that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     11th of January 2016

Date of Termination:             2nd of October 2023

Gross Weekly Pay:                  €240.00

CA-00060074-003

I have decided that this complaint is well founded.  Based on the information available to me at the hearing of this complaint, I direct the Respondent to pay the Complainant compensation of €1,920.00 in relation to notice, for his loss sustained by reason of the contravention of Section 4 of the Act.

Redundancy; Wages; Minimum Notice