PWD2218

FULL RECOMMENDATION

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

ACCENT SOLUTIONS

- AND -

MR ALAN O'CONNOR
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No. ADJ-00028530 CA-00036644-003

BACKGROUND:

2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 25 February 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION :

This is an appeal by Mr Alan O’Connor (the Complainant) against a Decision of an Adjudication Officer (ADJ-00028530 CA-00036644-003) under the Payment of Wages Act 1991 (the 1991 Act), dated 26 July 2021, against his former employer Accent Solutions. It is linked with PW2217, PW2219 and TU221.

The Adjudication Officer found that Mr O’Connor’s complaint was not well founded. Mr O’Connor lodged an appeal to the Labour Court on 02 September 2021 and a hearing of the Labour Court was held on 25 February 2022.

In this Determination the parties are referred to as they were at first instance. Hence, Mr Alan O’Connor is referred to as the Complainant and Accent Solutions is referred to as the Respondent.

Background

The Complainant commenced work as a plumber/handyman in October 2006 with Dalkia. In 2009 the facilities management unit of Dalkia transferred to another company Mitie, and in line with the Transfer of Undertakings Regulations, the Complainant’s terms and conditions of employment transferred to Mitie with the sale. In 2015, the Complainants terms and conditions of employment transferred to Aramark, and subsequently to the Respondent in February 2019. His employment was terminated by reason of redundancy on 31 March 2020.

Complainant’s case

SIPTU, on behalf of the Complainant, submits that the Respondent breached the Act by not paying the Complainant six weeks’ notice (€3,346.35), when he was informed on the 29 March 2020 that his employment would terminate two days later on 31 March 2020.

The Complainant was informed on 17 February 2020 that his position was to be made redundant with effect from 31 March 2020. He was subsequently informed that the company hoped to extend his employment for a further three months. He was led to believe that the termination date of 31 March had been withdrawn. Two days prior to 31 March he was advised that his contract would not be extended. As he was given notice on 29 March 2020 he should be paid six weeks’ notice from that date, which amounts to €3,346.35.

Respondent’s case

The Complainant was notified that his employment would terminate by reason of redundancy on 31 March 2020 at a formal meeting on 17 February 2020. This notification was confirmed to him by letter of the same date. The notice of termination date was never withdrawn. The Respondent submitted that discussions did take place around a possible extension, but due to Covid-19 the possible extension was withdrawn. No agreement was reached on a temporary extension and the notice served on 17 February still stood.

The applicable law

Section 5 (6) of the Payment of Wage Act 1991 states:
“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”.

Determination

To ground a claim under the Act of 1991, the wages concerned must be properly payable. The matter for the Court to decide is whether payment for six weeks’ notice was properly payable to the Complainant from 29 March 2020.

It is accepted by the parties that on 17 February 2020 the Complainant was issued with formal notification that his employment would terminate by reason of redundancy on 31 March 2020. In response to questions from the Court, the Complainant accepted that this formal notice of redundancy was never withdrawn.

In such circumstances, the Court cannot find that the Complainant was entitled to payment for a further period of notice effective from 29 March 2020. The Court therefore find that the wages paid to the Complainant during the cognisable period for this claim were the wages properly payable to him for that period.

Determination

For the reasons set out above, the Court determines that the within complaint is not well founded.

The Decision of the Adjudication Officer is upheld.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.