Complainant

Respondent

Parties

Corry  Bourke

Allied Irish Property Limited

Representatives

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-00062765-001

12/04/2024

The Complainant joined the Respondent on the 3rd of September 2020 in a senior operations/governance role.

In late 2023 unhappy differences arose and the Complainant was placed on garden leave as the Respondent emailed him stating that he had resigned on the 12th of December 2023. The Complainant disputes the Respondent position and states that he never resigned.

The Respondent ceased paying the Complainant during the course of the “garden leave/notice period.” This period ended on the 12th of March 2024

The Complainant brought a payment of wages complaint limited to this period of time and for annual leave on cessation.

A hearing was scheduled for the 27th of June. The Respondent’s Managing Director, Mr John Dowd, wrote to the WRC shortly before the hearing indicating he was unwell and unable to attend. Mr Dowd furnished a doctor’s certificate stating he was unfit to work for the week of the hearing. The matter was postponed.

A further hearing was scheduled on the 29th of August. Mr Dowd again wrote in, this time the evening before the hearing, stating “Unfortunately, I will not be in a position to make it to the hearing tomorrow due to illness. I will forward a doctors note to confirm same. Apologies for late notice.”

The hearing was due to start at 10.30am and Mr Dowd indicated in a subsequent email he would attend the GP first thing in the morning to obtain a certificate.  At the time the hearing was due to start at 10.30 am I had still not received a doctor’s certificate so I proceeded to open the hearing. 

Mr Bourke attended the hearing and gave evidence under affirmation.

Mr Dowd subsequently furnished a sick certificate for the day of the hearing. I then wrote to the Respondent noting the evidence provided by the Complainant and asking them to indicate by 5pm Friday the 6th of September 2024 whether he was contesting this claim and/or he would like me to arrange a resumed hearing so that I might consider any evidence or arguments on behalf of the Respondent or any challenges to the evidence supplied by Mr Bourke.

There was a typo in this letter in that it read August rather than September in the initial draft sent to the Respondent. This was clarified in a subsequent email.

Mr Dowd responded to that email offering to settle the case. He did not request any relisted hearing date.

Mr Bourke attended the hearing and gave evidence under affirmation.

The focus of his case is not on the circumstances of his exit from the Respondent but on his claim that he was not paid notice by the company despite the position set out in his contract.

He specifically referred to an email of the 14th of December 2023 at 13.33pm which placed him on garden leave for the duration of his notice period.

Mr Bourke submits that he is owed €25794.48 in notice pay and €5778.95 in accrued annual leave.

The Respondent did not attend the hearing or request a resumed hearing or submit any evidence to dispute the claims.

The Managing Director sent the following email to the WRC on the 6th of September referring to my letter of the 29th of August.

“I will agree to the amount payable (gross, before tax) on the condition Mr. Bourke agrees this amount is the full and final amount payable and no further case or claim will be made against the company now or in the future under any condition.

Mr Bourke submits that he is owed €25794.48 in notice pay and €5778.95 in accrued annual leave.

Please confirm.”

This matter was referred to me for adjudication, not mediation. While the WRC does offer a mediation service it operates before a matter is called to hearing and works on the basis of consent of both parties. Parties may of course directly engage with each other and resolve matters at any time.  However, as an Adjudication Officer I have no power to force either party to prejudice their rights more generally. My role is to inquire into and determine the complaint in front of me.

Section 5(6)(a) of the 1991 Act provides:

“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 on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) . . . 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.”

I am satisfied that the Complainant’s wages during their notice period and their accrued leave on cessation were properly payable but were not paid to the Complainant. The Respondent has advanced no case that there were any deductions permitted under the above act.

I find that the complaint is well founded. I direct the Respondent to pay the Complainant €31,573.43.