Complainant

Respondent

Parties

Michael  Bates

Solarstream Limited

Representatives

Self-represented 

Paul Browne

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066771-001

17/10/2024

Mr Bates was employed as a Sales Executive with the respondent from 15th June 2021 to 2nd September 2024. He earned €865.20 gross per week.

On the 2nd September 2024, after an phone call, he was informed that his employment would be terminated. He then received an email stating that he would be paid 4-weeks notice, which included arrangements on how he would finish up.

Mr Bates submitted complaints under the Payment of Wages Act. He claims he was not paid the fourth week of notice, that he was due a payment for 20 days accrued annual leave, and that he was not paid a week in arrears.

The respondent submits that he was only entitled to 2-weeks statutory notice as per his contract as he reneged on a commitment for a handover meeting. The respondent accepts that he was owed 3-days’ pay for annual leave accrued. The respondent denies that he was due a week in arrears.

Summary of Complainant’s Evidence

Mr Bates said he received 4-weeks’ notice in early September. He was aware that one or two jobs that he was working on could still come in. One main contract did not go ahead and he informed Mr Browne of this.

For the handover meeting, he said that he arrived at the company premises at an earlier time than the scheduled meeting. This was due to having arranged for a lift home as he lived a distance away. Mr Browne was in a management meeting so the handover meeting did not take place.

He said that he had returned everything to the office during the notice period. He said he sent an email with client details and updates to the respondent. Although a handover meeting did not take place, he left his details so he could be contacted. He said he was not contacted about any client queries. He said as he was only paid 3-weeks notice, and he was due a payment for the fourth week.

On the outstanding payment for accrued annual leave, he said he did not receive a response from the company so he referred a complaint to the WRC in October 2024. He said he checked at the end of 2023 and he had 16-days left. He took some leave over Christmas so he carried forward 13-days into 2024. He put into evidence a text message which confirmed that 13-days were carried forward into 2024. He said he accumulated annual leave for previous years and carried these forward without any issue. As he was due 7-days leave for 2024, he had accumulated 20-days.

He was also claiming for one week in arrears.

Under cross-examination by the respondent representative, he was asked why he did not facilitate a handover meeting as specifically set out in the termination email. He replied that even though a handover meeting did not take place that he provided the relevant information and was contactable.

It was put to him that he arrived earlier than the arranged time for the handover as he knew Mr Browne would be at the regular management meeting. He was asked why he did not facilitate a re-arranged handover meeting so that the company were fully up to date on client issues. He replied that although a meeting did not take place that he had provided all the relevant information.

On the accrued annual leave, he was asked about the contractual position of taking holidays within the leave year and a memo to all staff to take holidays in December 2023. He replied that this memo did not state that all leave had to be taken, and he had previously carried forward leave.

It was put to the complainant that the claim for a week in arrears was not valid, as the September 2024 payslips showed he was paid a week in arrears.

Summary of Mr Browne’s Evidence

Mr Browne put into evidence the email of 2nd September 2024 on the termination arrangements. He referred to the 4-week notice period and the specific reference to a handover meeting. He said this did not take place, despite his best efforts. He said, although the complainant was not required to work the notice period, he did require an in-depth handover. He put into evidence the emails to arrange a handover meeting. He viewed a handover as critical for the company. He put into evidence an email of 17th September 2024 on the handover meeting which concluded as follows- ‘As you remain employed this week, failure to attend and do an in-depth handover will be a breach of your employment.’

He referred to 11.4 of the employment contract which states- ‘If you refuse to work all or any part of the notice period, you will forfeit any remuneration due to you, for all or the remainder of the notice period.’

He referred to the period of notice in the contract of 2-weeks for service between 2-5 years. He said the complainant was paid 3-weeks’ notice which was one weeks’ overpayment. He submitted that this should be offset against any annual leave due.

On the accrued holidays he said that the termination email of 2nd September 2024 only referred to holidays in 2024 as follows- ‘You can link with ……. and agree your holidays for 2024 that are due to you.’

He submitted that the contract of employment states that holidays run from 1st January to 31st December and that all annual leave should be taken within that period.

In conclusion, he submitted that the week in arrears had been paid as per the payslips in the submission.

The Law

Section 5 (1) of the Payment of Wages Act 1991 provides-

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a)   the deduction is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   the deduction is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    in the case of a deduction, the employee has given prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

Findings

Contract of Employment

On 2nd September 2024, after a phone call, and follow-up email, the terms of termination were set out between the parties. The new terms were that 4-weeks’ notice would be paid with no requirement to work although a handover meeting would take place. The email also set out that the complainant needed to link up with a member of staff on holidays due for 2024. In effect, these were the expressed new contractual arrangements, particularly as neither party queried the terms that were set out.

Wages for Notice Period

The first issue is to establish whether wages are properly payable for the notice period of 4-weeks. He was paid 3-weeks although the respondent submits that there was an overpayment of one week.

I consider that the evidence was clear that the complainant did not fulfil the contractual arrangement to have a handover meeting. Therefore, section 5 (2) of the Act is relevant, as the wages properly due were subject to a deduction. As per the Act, a deduction can only be made due to an act or omission where the employee has been notified one week before the deduction.

On a review of the evidence, the respondent notified the complainant in writing on 17th September 2024, referring to the outstanding handover meeting as follows- ‘As you remain employed this week, failure to attend and do an in-depth handover will be a breach of your employment.’

The complainant was aware of the new contractual arrangements and had not queried same. As he failed to facilitate a handover, it was rightfully classified as an omission on his part. The 17th September email specifically warned the complainant of being in breach of his employment. I am satisfied that this communication was adequate notice as required under the Act. Therefore, I find that the respondent is not in breach of the Act by paying 2-weeks’ notice, under the circumstances that had transpired.

I decide the complaint is not well founded.

Therefore, there is an overpayment of one week as 3-weeks’ notice was paid by the respondent.

Accrued Annual Leave

The complainant claimed he was due 20-days accrued annual leave which consisted of 13-days carried over from 2023 and 7-days for 2024. The complainant submitted evidence that the 13-days were clarified as being carried over. Despite the respondent’s reliance on the contract of employment along with the notice to all staff to take leave during the calendar year, there was no evidence of a warning that he was in jeopardy of forfeiting annual leave for 2023. The complainant gave testimony that he carried annual leave forward in previous years without forfeiting same.

The new contractual arrangements stated - ‘You can link with ……. and agree your holidays for 2024 that are due to you.’

I find that the above statement cannot be relied upon to discount the leave carried forward from 2023. This leave was brought forward and there was no mention of it being forfeited up to September 2024.

For the reasons outlined, I find that the complaint is well founded. I decide that the complainant had accrued 20-days annual leave. When this amount is offset against the one-week overpayment, he is entitled to a payment for 15 days accrued annual leave.   

Week In Arrears

The complainant has not set out particulars on how he is due a week in arrears.

In PMC Painting Contractors Limited v. Ms Patrycja Kwindzinska DWT 224, the Labour Court found against the worker in circumstances where there was a general assertion made without any details provided. Similarly, in this case, the complainant has not provided sufficient evidence that he was due one week in arrears.

The respondent submitted payslips to show the complainant was paid for previous weeks during September 2024.

I find this complaint not well founded.

I decide that the complaint on payment of 4-weeks notice is not well founded.

I decide that the complaint on payment of accrued annual leave is well founded. I order the respondent to pay the complainant for 15 days’ accrued annual leave.

I decide that the complaint on payment of one week in arrears is not well founded.

Payment of Wages, Notice, Holidays