ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant has brought a number of claims against his former employer as listed above. The Complainant commenced work with the Respondent in 2000 on a part time basis. Whilst the Complainant worked on a full time basis for a time – as Bar Manager – he has in recent years worked on a part time basis – generally two days/shifts of 5 hours each per week. The Complainant has advised that his former employer ceased trading on the 24th April, 2019 and that since submitting his claims to the WRC, the Respondent entered into liquidation on the 29th July, 2019 by way of a members voluntary wind up. In this regard, I have been furnished with a letter dated 17th July, 2019 from the Respondent’s legal representative which confirmed that a petition had been filed with the High Court to wind up the Respondent company and a further letter dated the 31st July, 2019 which confirmed that an order was made by the High Court on the 29th July, 2019 to wind up the Respondent company and appoint a liquidator.
The Respondent did not attend the adjudication hearing. However, I note that the Respondent had authorised the WRC to deal with his legal representatives and that there were various exchanges between the WRC and his legal representatives. I also note that on the 24th September 2019, the WRC issued written notification of the adjudication hearing scheduled for the 21st October, 2019 to the court appointed liquidator.
It is the Complainant’s position that pursuant to the Protection of Employees (Employers Insolvency) Act 1984, that he is entitled to be regarded as a secured creditor of the Respondent company for the purposes of the Social Insurance Fund. This is not a matter dealt with in this WRC case.
The Complainant was represented at the adjudication hearing by Alastair Purdy & Co Solicitors.
I now propose to deal with each of the Complainant’s complaints in the order outlined above.
Summary of Complainant’s Case:
The Complainant submits that his weekly wage was unlawfully deducted contrary to Section 6 the Payment of Wages Act [1991-2019]. In this regard the Complainant outlined that his employment generally consisted of 2 five hour shifts per week – mainly operating on a 2 day week basis. The Complainant stated that up until 1 March, 2019 he was paid by way of cash in hand. He outlined that he was paid a gross amount of €150 per shift which amounted to €80 net after tax. The Complainant submitted that due to the appointment of new accountants by the Respondent and the introduction of a new payroll system to comply with tax obligations, the practice of payment in cash ceased and that he received his first payslip under the new system on 8 March, 2019. However, with the introduction of the new system, the Complainant submitted that without notice, consultation or consent his gross pay/shift was reduced to €80 thereby leaving a net amount payable to him of €43.41/shift. The Complainant furnished a limited number of payslips and a number of P60s in support of his contention that his wages had been unlawfully deducted.
The Complainant submitted that he had no difficulty with the change of practice introduced by the accountants and that his only issue was the reduction in his wages. In this regard, the Complainant furnished a sequence of emails exchanged between him and the new accountants between 9 March, 2019 and 2 April, 2019 in the course of which the Complainant objected to the unlawful wage deduction and advised that he did not have a written contract of employment. The Complainant submitted that he endeavoured to rectify the wages deduction directly with the accountants but to no avail. The Complainant’s first email to the accountants of 9 March, 2019 stated as follows:
My name is [C]. I have been working in the…..bar for just under 20 years for [R] Limited as one of its bar managers. When I picked up my wages….. last night, my pay had been reduced by nearly half the amount as before (Over ten years). I have an agreed hourly wage with [R] Limited and have not consented to any amendment to my wage. Any unilateral amendment to my wage is therefore a breach of my rights as an employee. Could you please clarify to me asap why this has changed and without my consent”.
Initially the Complainant received email responses from the accountants which cited revenue guidelines and that no tax credits had been factored in for his employment. Ultimately his emails were met with an automated/recorded message which inter alia stated that the accountants “will not be answering emails from individual staff members….” and which also exhorted him to complete the diary regarding his hours of work in order to get his correct wages and to contact his local tax office regarding his “tax credits, cut-off, or indeed tax refunds”.
The Complainant submitted that he has an implied right to be paid €80 net/shift and that he was underpaid for the weeks ending the 14th, 21st, 28th March and the 4th, 11th, 18th and 26th April, 2019. The Complainant has quantified the total underpayment of wages owed to him as €512.36 on the basis that his deductions per shift from the new €80 gross amount/shift amounted to €36.59 and that over 7 weeks and 2 shifts per week this equates to €512.26.
In addition the Complainant advised that because of the underpayment, he refused altogether to accept his weekly wages from the 8th March 2019 onwards. As a consequence, he is also seeking an amount of €607.74 being the net amount he was offered – ie his net wages post 1 March, 2019 - which he refused to accept for the 7 weeks prior to the business closing.
Findings and Conclusions:
This is a complaint under the Payment of Wages Act, [1991-2019] to the effect that the Respondent made an unlawful deduction from the Complainant’s wages over the course of 7 weeks. The Complainant submitted his claim on 12 April, 2019 which was within the six months time limit to bring such a claim.
Section 5(1) of the Payment of Wages Act, [1991-2019] states:
“An employer shall not make a deduction from the wages of an employee (or receive any payment from the employee) unless –
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) 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 his prior consent in writing to it.
Section 5(6) of the Act states that where:
(a) the total amount of 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”
The effect of the above provisions is to make unlawful any deduction from wages unless it is required by statute or contract or unless the employee has consented to it in advance. The effect of Section 5(6) is to allow a reduction in wages to be treated as a deduction. This approach was endorsed by the High Court in the case of EARAGAIL EISC TEORANTA V Ann Marie Doherty & Ors  IEHC 347, where Kearns J. determined “that the reduction to the employees wages in the present case may have constituted a deduction in breach of the 1991 Act”.
Based on the Complainant’s payslips of 31/3/2017, 7/4/2017, 13/1/2018, his gross pay/shift was €152.48 – ie half of the gross amount of €304.95. It is the Complainant’s contention that for the seven weeks prior to the closure of the business his gross pay was reduced to €80/shift and he has produced two payslips from March 2019 to evidence this.
Having considered the written and oral submissions and the payslips, I am satisfied there was an unlawful deduction of wages arising from the reduction in the Complainant’s gross pay. No evidence to the contrary has been presented. This complaint is therefore well founded.
The Complainant stated that he worked two shifts of 5 hours each per week generally beginning in the evening time at 7.30pm up to 11.30pm or up until or after midnight. The Complainant submitted that as Bar Manager he was the only Manager on site, that the owner was generally not present after 6pm, that there was no formal arrangements for rest breaks and that in any event as Bar Manager, he could not readily take breaks.
Findings and Conclusions:
The Organisation of Working Time Act [1997-2017] states as follows at paragraph 12 (1):
“An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes” .
Section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention. As the complaint to the WRC was received on 12 April, 2019 the relevant complaint period commenced six months prior to then ie on 13 October, 2018.
The Complainant’s position is that there was no formal system for him as Bar Manager to take a break. However, as Bar Manager, I consider the Complainant could have arranged a roster to facilitate the taking of breaks by staff including himself. In that regard, I note that in the course of his evidence, the Complainant accepted there was a degree of flexibility amongst staff to facilitate informal breaks. The Complainant also confirmed that he had never raised this matter with the Respondent.
Having considered the evidence adduced at the oral hearing and the submissions, it is my decision that this complaint is not well founded.
The Complainant stated that in all his time working for the Respondent he never received any public holiday entitlement. He submitted that his shifts were regularly on Mondays and Thursdays and that apart from Christmas day, he had always worked on public holidays. The Complainant stated that public holidays were especially busy. The Complainant confirmed that he had never raised this matter with the Respondent. The Complainant submitted that he had worked 5 bank holidays at the basic rate of pay over the course of the six months prior to his complaint being submitted to the WRC on 12 April, 2019.
Findings and Conclusions:
Section 21 of the Organisation of Working Time Act [1997-2019] provides that an employee, in respect of a public holiday, is entitled to whichever one of the following his/her employer determines:
a) “a paid day off on that day,
b) a paid day off within a month of that day,
c) an additional day of annual leave,
d) an additional day’s pay”
Section 27 of the Organisation of Working Time Act [1997-2019] provides that an Adjudicator under Section 41 of the Workplace Relations Act,  shall:
a) “Declare that the complaint was or, as the case may be, was not well founded,
b) Require the employer to comply with the relevant provision,
c) Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment”.
Having considered the oral and written submissions and having regard to the nature of the Respondent’s business, I accept the evidence of the Complainant and declare this complaint to be well founded.
The Complainant stated that during the entire tenure of his employment with the Respondent he never received any paid annual leave. In particular, the Complainant has sought to be recouped 8 annual leave days from the previous leave year 2018/2019.
The Complainant confirmed that he had never raised this matter with the Respondent. The Complainant submitted that given the health and safety implications of the EU Working Time Directive, that he should be compensated for the failure of the Respondent to grant annual leave from the commencement of his employment with the Respondent. The Complainant cited the case of the Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board and Alexander Agnew & Ors [STEI0946] as authority for his proposition in this regard.
Findings and Conclusions:
Section 19 of the Organisation of Working Time Act [1997-2019] deals with annual leave and states that 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):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater”.
Section 23 of the Organisation of Working Time Act [1997-2019] provides that:
(a) Where –
I. “an employee ceases to be employed, and
II. the whole or any portion of the annual leave in in respect of the current leave year or, in case the cesser of employment occurs in the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,
the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case maybe, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave”
(b) In this subsection-
‘relevant period’ means –
(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,
(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year –
(i) the current leave year, and
(ii) the leave year immediately preceding the current leave year”
Section 25 the Act provides that an employer is required to keep records of an employee’s hours of work and the manner as to how this is to be done is prescribed in SI 473 of 2001. As a consequence the employer carries the statutory burden of proving compliance with the Act.
The Complainant has sought to be compensated for not being afforded any annual leave since he commenced employment with the Respondent.
Section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention. In this instance the complaint was received on 12 April, 2019 and accordingly, I deem the relevant period for the purpose of Section 23 to be the leave year commencing on 1 April, 2018. In accordance with the Workplace Relations Act, 2015 I am satisfied I have no jurisdiction to consider any time period prior to 1 April, 2018.
Having considered the oral and written submissions in this claim, I accept the uncontested evidence of the Complainant and declare this complaint to be well founded.
The Complainant submitted that he had never received a written statement of his terms and conditions of employment from the Respondent or any written contract.
Findings and Conclusions:
Section 3 (1) of the Terms of Employment (Information) Acts [1994-2019] states that “an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing…particulars of the terms of the employee’s employment”.
Section 3 (4) of the Terms of Employment (Information) Acts [1994-2019] states that “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.
Section 41(6) of the Workplace Relations Act [2015-2019] provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”. The time limitation for pursuing a complaint under Section 3 of the Terms of Employment Act was considered in ADJ-00009820 and I agree with the reasoning set out in that decision. The Adjudication Officer determined that a breach of Section 3 is a subsisting breach and that “If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, ie the last day of their employment”.
On the basis of the foregoing, I accept the uncontested account of the Complainant that he was not furnished with a statement in accordance with the provisions of Section 3 of the Terms of Employment (Information) Acts [1994-2019]. The onus is on the Respondent to comply with these statutory obligations. Therefore, this complaint is well founded.
The Complainant submitted that he was never notified in advance or at any stage that his gross salary was to be reduced in March 2019 and that he only became aware of this change when he received his payslip on 8 March, 2019. The Complainant submitted that this represented a change to his terms and conditions of employment contrary to Section 5 of the Terms of Employment (Information) Acts [1994-2019].
Findings and Conclusions:
Section 5 (1) of the Terms of Employment (Information) Acts [1994-2019] states that “….whenever a change is made or occurs in any of the particulars of the statement furnished by the employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) 1 month after the change takes effect,”.
Section 3 of the Act provides that the statement of terms which should have been furnished to the Complainant must contain “the rate or method of calculation of the employee’s remuneration….”.
I have been furnished with a written submission from the Respondent in relation to payroll matters which advises that “A notice was put up in the Bar directed to all staff members requesting that they visit their local tax office and have their tax credits/cut-offs allocated to the company and also outlining the need for weekly pay as opposed to the current shift pay” and that “The company also introduced hours rather than shift for the basis of pay…..An hourly rate was agreed….for all members of staff”. In addition, the Complainant furnished me with a sequence of emails between him and the Respondent’s accountants regarding the reduction in his wages. In these emails the Complainant stated that he was not aware of any reduction until he picked up his wages from the Respondent on 8 March, 2019. Thereafter in the period up to 2 April 2019, the emails show that the Respondent’s accountants engaged to some extent with the Complainant to explain matters.
In all the circumstances and taking into account the course of dealings regarding the new payroll system, I have decided this complaint is partly well founded.
The Complainant submitted that he was in continuous employment with the Respondent since 2000 and that he was unfairly dismissed on 24 April, 2019 as on that date he received an email from the Respondent’s accountants which, inter alia, stated:
“As you know, [R] had to close the XXXX last Thursday due to ongoing difficulties. Strictly without prejudice, [R] wishes to let you know that he is in consultation with his solicitor and some prospective lessors. [R] will keep you informed, either through this office or his solicitors, regarding how matters progress this week or early next week. We have now ceased your employment with [R] Limited with Revenue through the ROS on line system”.
The Complainant referred this complaint to the WRC on 30 April, 2019. The Complainant maintains there was no consultation with him regarding the ceasing of his employment either before he received the above email or afterwards and nor was there any notice of termination. The Complainant maintains that his dismissal took place without due process, in breach of fair procedures and natural justice, was absent the requirements of any disciplinary procedure and that the Respondent’s conduct was unreasonable.
Findings and Conclusions:
Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Section 6 (1) therefore contains a statutory presumption of unfairness and as a consequence, the burden of proof shifts to the Respondent employer to show otherwise and/or that there were substantial grounds justifying the dismissal.
Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out the circumstances wherein the dismissal of an employee “shall be deeme…...not to be an unfair dismissal” and in this regard, Section 6(6) of the Act states:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”.
In light of these provisions, and the uncontested evidence of the Complainant, and the terms of the email of 24 April 2019 received by him from the accountants, and the absence of any dismissal or disciplinary procedures as per SI 146/2000, I am satisfied the Complainant was unfairly dismissed. This complaint pursuant to the Unfair Dismissals Act [1977-2017] is therefore well founded.
The Complainant submitted that he never received a Sunday premium since commencing his employment with the Respondent. In this regard, the Complainant claimed that he had worked every Sunday for the last 12 months of his employment.
Findings and Conclusions:
Section 14 of the Organisation of Working Time Act [1997-2019] provides that “An employee who is required to work on a Sunday (and the fact of his having to work on that day has not otherwise been taken account of in the determination of his her pay) shall be compensated by his her employer by being required so to work….”. Section 14(a) – (d) goes on to outline the means by which the employee shall be so compensated – ie:
a) “by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
d) by a combination of two or more of the means referred to in the preceding paragraphs”
The Complainant has stated that he worked every Sunday for the previous 12 months. Section 41(6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention. In this instance the complaint was received by the WRC on 30 April, 2019 and accordingly, I deem the relevant period for the purpose of Section 14 to have commenced on 31 October, 2018. Section 41(8) of the Act provides that an Adjudication Officer may entertain a complaint submitted after the six month period has expired provided it is presented within the next six month period and the Adjudication Officer is satisfied that the failure to present the complaint within the initial six month period, was due to reasonable cause. No such case has been made out by the Complainant.
Whilst the Complainant asserted that he worked every Sunday for the last 12 months of his employment, he also stated in the course of the adjudication hearing, that his shifts were regularly on Mondays and Thursdays and that apart from Christmas day, he always worked on public holidays. No dates have been specified by the Complainant in respect of any Sunday work. The Complainant also confirmed that he had never raised this matter with the Respondent. Notwithstanding, having considered carefully the oral and written submissions relevant to the circumstances of the Complainant’s employment and the nature of the Respondent’s business, I have decided this complaint is well founded.
The Complainant submitted that he did not receive any notice of termination of his employment from the Respondent. In this regard, he has cited the email from the Respondent’s accountants received by him on 24 April, 2019 which stated:
“As you know, [R] had to close the XXXX last Thursday due to ongoing difficulties……We have now ceased your employment with [R] Limited with Revenue through the ROS on line system”.
The Complainant submitted that he was in the continuous employment of the Respondent since 2000. Based on his 19 years employment service, he is seeking to be compensated for the statutory minimum notice period of eight weeks in accordance with the Minimum Notice and Terms of Employment Act [1973-2017] and pursuant to the Payment of Wages Act, [1991-2019].
Findings and Conclusions:
Having considered the oral and written submissions in this matter, I accept the uncontested evidence of the Complainant that his employment was terminated without notice. I have already accepted that the Complainant did not have a written contract of employment. The statutory notice periods are set out in the Minimum Notice and Terms of Employment Act [1973-2017] which specifies at paragraph 4 that “if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks”.
This Complainant is seeking compensation for the failure of the Respondent to provide him with the statutory minimum notice pursuant to the Payment of Wages Act, [1991-2019]. In this regard, Section 1 of the Payment of Wages Act, [1991-2019] defines wages as:
“any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.
Accordingly, I decide this complaint is well founded.
Withdrawn by the Complainant at the adjudication hearing.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints pursuant to Section 6 the Payment of Wages Act [1991-2019]. In this regard, I make the following decisions in respect of the complaints which I have deemed to be well founded or partly well founded:
I do not accept the Complainant’s contention that he had an implied entitlement to be paid €80 net/shift. Further, the amount of €36.59 which was deducted from his wages in March 2019 was in respect of PAYE and USC which are lawful deductions within the Act.
In the alternative, I award the Complainant €1014.72 in respect of the reduction in his gross wages over the 7 weeks period claimed – on the basis of two shifts/week. This is a gross sum and is taxable and subject to the required statutory deductions.
I have no jurisdiction to make any decision in respect of the wages refused by the Complainant for the seven weeks prior to the closure of the business.
I award the Complainant €400 in respect of the 5 bank holidays claimed on the basis of €80 net/shift.
I award the Complainant paid annual leave equivalent to 8% of the hours he worked in the leave year 2018/2019 which is equivalent to 8 days - ie €640 net pay based on his pre March 2019 payslips.
With regard to compensation, the Labour Court stated in the case of STABLEFIELD LTD V ANA LACRAMIOARA MANCIU [DWT 1924] that “The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law”. Accordingly, I make a further award of €1000 compensation for the breach of section 19.
I award the Complainant €640 based on four weeks net pay pre March 2019 in respect of the breach of Section 3 of the Terms of Employment (Information) Acts [1994-2019].
I award the Complainant €200 in respect of Section 5 of the Terms of Employment (Information) Acts [1994-2019].
I award the Complainant €750 in respect of an allowance for Sunday work, pursuant to Section 14 of the Organisation of Working Time Act [1997-2019]. The sum is based on his weekly net pay of €160 pre March 2019.
I award the Complainant €1,280 in respect of his entitlement to eight weeks minimum statutory notice pursuant to the Minimum Notice and Terms of Employment Act [1973-2017]. The sum is based on his weekly net pay of €160 pre March 2019.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. In this instance, I decide that compensation is the appropriate remedy. Section 7(2)(c) of the Act requires that in determining the amount of compensation payable that “regard shall be had to…..the measures, to mitigate the loss aforesaid…”. The obligation to mitigate was explained by Sir John Donaldson in AG Bracey Ltd V Iles  IRLR 210 wherein he stated that:- “The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss”.
In all the circumstances, I award the Complainant redress for the unfair dismissal of €7,500.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer:
A Bar Manager V A Public House