ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048646
Parties:
| Complainant | Respondent |
Parties | Janaina Barbosa | Lifetimecare Limited |
Representatives |
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Complaints:
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-00059678-001 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00059678-002 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00059678-003 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059678-004 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00059678-005 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00059678-006 | 30/10/2023 |
Date of Adjudication Hearing: 23/02/2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints 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
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. Ms Janaina Barbosa the complainant gave evidence under oath and Diego Barbosa attended for the complainant and the respondent did not attend.
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Background:
The complainant submitted that she did not receive monies properly payable, did not receive annual leave, did not receive redundancy and did not receive her minimum notice. The respondent did not attend the hearing. |
Summary of Complainant’s Case: CA-00059678-001
The complainant gave evidence that she was employed as an Office Manager and her wages were €577.50 weekly and that the company provided care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.”
Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she is owned €577.50 for her wages from 18/09/23 – 24/09/23. |
Summary of Respondent’s Case: CA-00059678-001
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-001
The complainant submits that she did not receive monies owed regarding hours worked between 18/09/2023 – 24/09/2023 totalling €577.50 and the respondent did not attend the hearing and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group on 05/10/2023 that the company had ceased trading on 05/10/2023.
Section (6) provides that 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.
For a breach of the Act to occur, the wages must be properly payable within the cognisable period and I note that the complaint was submitted on 30/10/2023.
In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that, “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.
I accept the undisputed credible evidence of the complainant and I find, therefore, in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period is €577.50. |
Summary of Complainant’s Case: CA-00059678-002
The complainant gave evidence that she was employed as an Office Manager and her wages were €577.50 weekly and that the company provided care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.”
Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she is owned €577.50 for her wages from 25/09/23 – 01/10/23. |
Summary of Respondent’s Case: CA-00059678-002
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-002
The complainant submits that she did not receive monies owed regarding hours worked between 25/09/2023 – 01/09/2023 totalling €577.50 and the respondent did not attend the hearing and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group on 05/10/2023 that the company had ceased trading on 05/10/2023.
Section (6) provides that 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.
For a breach of the Act to occur, the wages must be properly payable within the cognisable period and I note that the complaint was submitted on 30/10/2023.
In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that, “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.
I accept the undisputed credible evidence of the complainant and I find, therefore, in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period is €577.50. |
Summary of Complainant’s Case: CA-00059678-003
The complainant gave evidence that she was employed as an Office Manager and her wages were €577.50 weekly and that the company provided care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.”
Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she is owned €462 for her wages from 02/10/23 – 05/10/23. |
Summary of Respondent’s Case: CA-00059678-003
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-003
The complainant submits that she did not receive monies owed regarding hours worked between 02/10/2023 – 05/10/2023 totalling €462 and the respondent did not attend the hearing and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group on 05/10/2023 that the company had ceased trading on 05/10/2023.
Section (6) provides that 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.
For a breach of the Act to occur, the wages must be properly payable within the cognisable period and I note that the complaint was submitted on 30/10/2023.
In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that, “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.
I accept the undisputed credible evidence of the complainant and I find, therefore, in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period is €462. |
Summary of Complainant’s Case: CA-00059678-004
The complainant gave evidence that she was employed as an Office Manager and her wages were €577.50 weekly and that the company would provide care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.” Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she never took annual leave during her leave year from January and that her average working hours were 35 hours weekly and that she is therefore owed her annual leave entitlements. |
Summary of Respondent’s Case: CA-00059678-004
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-004
The complainant submits that she did not receive annual leave during the leave year from January 2023 and the respondent did not attend the hearing and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group on 05/10/2023 that the company had ceased trading on 05/10/2023 and that the complainant’s weekly wage was €577.50.
Section 19 provides that “.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):”
The complainant’s credible undisputed evidence was that she did not take any leave during her leave year and taking into consideration all the submissions and evidence I find that the complaint is upheld and is well-founded and the Respondent is directed to pay the Complainant compensation of €2,310 which I deem to be just and equitable having regard to all the circumstances of this claim. |
Summary of Complainant’s Case: CA-00059678-005
The complainant gave evidence that she commenced employment 23/08/21, was employed as an Office Manager and her wages were €577.50 weekly and that the company would provide care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.” Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she is owed redundancy payment. |
Summary of Respondent’s Case: CA-00059678-005
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-005
The complainant submits that she did not receive redundancy payment and the respondent did not attend and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group that the company had ceased trading on 05/10/2023.
Taking into consideration all the submissions and evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:
Date of Commencement: 23/08/2021 Date of Termination: 05/10/2023 Gross Weekly Pay: €577.50 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts. |
Summary of Complainant’s Case: CA-00059678-006
The complainant gave evidence that she was employed as an Office Manager and her wages were €577.50 weekly and that the company would provide care assistants to clients. In September 2023 the owner Mr A said that there were issues with pay and on 05/10/23 on the company’s WhatsApp group, Mr A, posted a picture of a letter which set out: “To Whom lt May Concern (client) /Staff/Creditors Dear Sir / Madam At a meeting of the Directors of lifetimecare Limited today to discuss the current financial position of the company, it was decided to cease trading from 5pm today. Over the past year my health has deteriorated to the point where in April last, I notified the (client) that I can no longer support the service and wanted an orderly transfer of clients and staff. Unfortunately, the (client) were unwilling to increase the carer rates as a new tender was forthcoming. This resulted in the payment arrangement which had been made with the Revenue Commissioners to be missed and the companies tax clearance certificate to be withdrawn. As a result, the (client) cannot pay the outstanding invoice for the last 2 months. As a result, the company cannot pay its staff or other creditors and is forced to close today. I wish to thank everyone for your continued support over the years.” Mr A then removed himself from the WhatsApp group and blocked himself on the WhatsApp group and the complainant has had no further contact with him.
The complainant submits that she is owed minimum notice of two weeks. |
Summary of Respondent’s Case: CA-00059678-006
The respondent did not attend and was notified of the hearing by post and a link for the virtual hearing was sent to the email address provided but bounced back.
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Findings and Conclusions: CA-00059678-006
The complainant submits that she did not receive minimum notice and the respondent did not attend the hearing and I am satisfied that the respondent is on notice of the hearing. I note that the respondent advised the complainant by letter on a WhatsApp group on 05/10/2023 that the company had ceased trading on 05/10/2023.
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,
I accept the undisputed evidence of the complainant on her continuity of service and find the complaint well founded and award the complainant €1,155.00. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00059678-001 I find, in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period is €577.50.
CA-00059678-002 I find, therefore, in favour of the complainant and I find that the complaint is well founded and that the monies properly payable to the complainant during the cognisable period is €577.50.
CA-00059678-003 I find, therefore, in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period is €462.
CA-00059678-004 I find that the complaint is upheld and is well-founded and the Respondent is directed to pay the Complainant compensation of €2,310 which I deem to be just and equitable having regard to all the circumstances of this claim.
CA-00059678-005 I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following: Date of Commencement: 23/08/2021 Date of Termination: 05/10/2023 Gross Weekly Pay: €577.50 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.
CA-00059678-006 I find the complaint well founded and award the complainant €1,155. |
Dated: 13-03-2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Minimum notice, redundancy, respondent ceased trading, payment of wages, annual leave |