ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050973

Parties:

Complaint:

Date of Adjudication Hearing:  08/11/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and section 6 of the Payment of Wages Act 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent failed to pay the wages of the Complainant when the premises was shut down for renovations following a flood incident.

Summary of Complainant’s Case:

The Complainant was employed as a Chef from 9th August 2023.  He was told that the restaurant had to be closed for renovations for the month of January 2024.  That agreement was then reneged upon and he was told he had to take his holidays and then apply for Social Welfare.

The Complainant states that he would not have taken up this employment if he was properly informed of an unpaid lay-off for the duration of the café’s renovation works. He wishes to draw the attention of the Adjudicator to the email he sent on the 18th January 2024 directly to the café’s owner, Ms K expressing his grievance regarding the fact that he was consistently assured that his, and other kitchen staff’s full wages will be maintained during the renovation works. He made his annual leave bookings and plans with this promise in mind.   The answer he was given by Ms K and then by the Head Chef are telling and are also worth noting. The Complainant remains on certified sick leave and is receiving treatment for depression since the end of January 2024.  He brought this claim to the WRC seeking his unpaid wages which he firmly believes are due to him.

The Complainant gave evidence on affirmation.  He stated that he did not seek the job as Chef but he was approached by Head Chef P to work there.  P advised him that the restaurant would be closed due to renovations, but he categorically stated that wages would be paid from the insurance money.   He did not agree that he should use his holidays at that point, and he suffered greatly from deductions of wages.

Evidence was given on affirmation from former employees.  One stated that he had run out of money when he was on holidays and had to borrow from family.  It was a shock to him to have had his wages stopped.

Summary of Respondent’s Case:

The respondent denies this claim. It is submitted that the scheduled period of short-term layoff commenced on the 8th of January 2024 (to 5th of February 2024), and the Complainant has submitted sick certificates since 26th of January 2024.

The complainant is claiming the sum of €4651.00 alleging that an ‘agreement ‘existed by which this was to be paid. The respondent submits that no such agreement ever existed with the complainant and that no payments are due to the complainant.

The Handbook provides the following at page 8 – section ‘D’ under heading of ‘Remuneration’ (emphasis added): “If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked and, if applicable, in accordance with any concurrent temporary pay reduction. If you are placed on lay off then no payments will be made to you. The Company will seek to provide you as much notice as is reasonably practicable for any shortage of work or pay reduction. Any benefits accrued during such a period of reduced working hours, short time working or lay-off will be on a pro rata basis.”

WhatsApp sent out to all staff with update on our closure in January 2024 Memo sent out to all employees through HR BRIGHT advising of closure for café renovations and temporary layoff for Jan-24 & Feb-24.

07/01/24 Last day open to public (closure next day).

17/01/24 Complainant demands insurance money.

26/01/24 First medical certificate received (and continued to 29th of August 2024).

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, made clear that the Court, when considering a complaint under the Act, must first establish the wages which were ‘properly payable’ to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.

The respondent submits that the sum claimed by the complainant on the basis of a non-existent ‘agreement’ cannot constitute ‘wages properly payable’.

The Employment Appeals Tribunal considered the question of whether there was an entitlement to be paid during ‘lay off’ in An Employee -v- An Employer PW239/11, an appeal against a decision of a Rights Commissioner in a complaint made under the Payment of Wages Act, 1991. The Tribunal noted that:

“… in Industrial Yarns Ltd. V. Leo Greene and Arthur Manley [1984] ILRM 15 at page 21, Costello J. stated that “If there is no contractual power (express or implied) in the contract of employment to suspend the operation of the contract for a limited period then by ceasing to employ an employee and refusing to pay him wages the employer has been guilty of a serious breach of the contract amounting to a repudiation of it.” The corollary of this is that where there is such a provision, whether express or implied by statute or custom and practice, it is permissible to suspend the operation of the contract for a limited period. Having heard the evidence given, the Tribunal finds that the appellant was told on the Friday when the contract finished that she was being laid off and that the company hoped to find work for her shortly. There was a provision that allowed for unpaid lay-off in the terms and conditions of employment provided to the appellant and signed and dated by her on 10 March 2010. In this case, therefore, there was a provision such as that referred to by Costello J. above, the appellant was laid off pursuant to that provision, and no money is payable.”

In summary, the respondent submits that:

1. The event necessitating the temporary closure occurred prior to the complainant commencing employment with the respondent.
2. For the period 8th of January to 5th of February 2024, the complainant was on ‘short term layoff’.
3. There is no ‘agreement’ between the respondent and the complainant such as the complainant is attempting to assert.
4. The complainant has no entitlement, statutory or otherwise in respect of monies intended to pay for the cost of the repair and renovations.
5. The sums claimed by the complainant are not ‘wages properly payable’.

Findings and Conclusions:

Section 5 of the Payment of Wages Act 1991 provides:

Section 5 (6) provides:

In order to succeed in his claim, the Complainant must demonstrate that wages “properly payable” were not paid to him in the period.  It is well established that there is no automatic entitlement for employees to be paid during layoff.  While it may have been desirable that the Complainant’s wages and the wages bill of those laid off due to the temporary closure of the premises would be covered by insurance, no evidence was provided that such an arrangement occurred.

I note the contractual position in the employment as expressed in the Handbook, that where the employees are placed on lay off then no payments will be made to them.   The Complainant in this case was probably misled by the Head Chef at the time when he advised that payment of wages would be maintained during closure.  However, the clear legal position is that the Complainant was not entitled to wages during the period of layoff.  I find the complaint to be not well founded.

Decision:

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.

For the reasons cited, I have decided that the complaint is not well founded.

Dated:   13/01/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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