ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021814
Parties:
| Complainant | Respondent |
Anonymised Parties | Café manager | Café owner |
Representatives | Self-represented | Did not attend |
Complaint(s):
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-00028491-001 | 19/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028491-002 | 19/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00028491-003 | 19/05/2019 |
Date of Adjudication Hearing: 02/09/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked as a cafe Manager from 4/12/2012 until the closure of the business on 20/11/2018. She worked 35 hours a week and earned a fortnightly gross salary of €792, €731 net. Two of her three complaints concern an alleged contravention of section 5 of the Payment of Wages Act, 1991. The third complaint concerns an alleged breach of section 7 of the Redundancy Payments Act, 1967. She submitted her three complaints to the WRC on 19/5/2019. |
Summary of Complainant’s Case:
CA-00028491-001. Complaint under section 6 of the Payment of Wages Act, 1991 Wrongful deduction of 2 weeks salary amounting to €792 on 6 November and wrongful deduction of a payment of €72 in respect of the October public Holiday. The complainant worked since 2012 as a manager of the café. She states that she made a mistake on the complaint form and that she worked up until 20/11/2018. While she received a pay slip for €792 for the fortnight ending 6 November 2018, a copy of which was submitted, no money was actually paid to her. She was normally paid in cash. In addition, half of this €792 (€384) was due on the salary payable on 20 November. The respondent also wrongfully deducted the sum of €72 in respect of the October public holiday which fell on 6/11/19. Mitigating circumstances for late submission of complaint concerning the wrongful deduction of €792 and €72 in respect of the public holiday. The complainant again states that half of the €792, the sum of €396 was payable on the 20 November. She did ask the respondent repeatedly for her salary which was paid in cash. The respondent advised the complainant on the 8 April and again on 3 May that her accountant and/ or solicitor would be in touch with the complainant about any outstanding monies due.
CA-00028491-002. Complaint under section 6 of the Payment of Wages Act, 1991. Wrongful deduction of wages amounting to €270 in respect of 22.5 hours worked for the two weeks on 20 November 2018. The complainant submitted a copy of her pay slip. No money was actually paid to her.
CA-00028491-003. Complaint under Section 39 of the Redundancy Payments Act, 1967 The complainant tried to access the respondent’s café at the end of November 2018 but found it locked and inaccessible. The respondent told her that the landlord had repossessed the building in which the café was housed. The respondent issued the complainant with a p45. The complainant submitted a copy of form RP 77, sent to the respondent on 11 March and on foot of which the respondent told her that her accountant would be in contact the complainant. She received no such contact.
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Summary of Respondent’s Case:
CA-00028491-001. Complaint under section 6 of the Payment of Wages Act, 1991 The respondent was duly notified of the details of the hearing. The respondent did not attend. CA-00028491-002. Complaint under section 6 of the Payment of Wages Act, 1991. The respondent was duly notified of the details of the hearing. The respondent did not attend. CA-00028491-003. Complaint under Section 39 of the Redundancy Payments Act, 1967 The respondent was duly notified of the details of the hearing. The respondent did not attend. |
Findings and Conclusions:
CA-00028491-001. Complaint under section 6 of the Payment of Wages Act, 1991. Time limits. Firstly, I accept the complainant’s evidence concerning the date of the deduction of €396 on 20 November as opposed to 6 November. The complainant presented her evidence in a credible manner. Payment of €468 (€396 and €72) wrongfully deducted on 6 November 2018. The complainant submitted her complaint on 19 May 2019. Section 41(6) of the Workplace Relations Act,2015 states “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 6 months beginning on the date of the contravention to which the complaint refers” Subsection 8 permits an extension of the time limit where reasonable cause is shown for the delay. The test for determining reasonable cause was formulated in Determination DWT0338 –Cementation Skanska and Carroll in the following terms: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.” The evidence of the complainant is that she was in repeated contact with the respondent concerning these payments. There were a sufficient number of promises made and not met by the respondent to indicate that the payment of these wages within a six-month date from the date of their deduction or indeed at any point in time was highly uncertain. So, while I accept that the circumstances advanced by the complaint explain the delay, I find, using the Skanska test, that they do not excuse the delay. I find I do not have jurisdiction to hear the complaint concerning a wrongful deduction of €468 on 6 November. Wrongful deduction of €396 on 20 November. Section 5(1)(2) of the Act of 1991 prohibits a deduction unless the “deduction is of an amount that is fair and reasonable having regard to all the circumstances”. Section 5 (6) of the Act of 1991 goes on to identify a deduction as follows: “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) [….] 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, I find that on the basis of the uncontested evidence and the pay slips that the sum of €396 was properly payable on 20 November. I find that this deduction was a wrongful deduction. I require the respondent to pay the sum of €396 to the complainant subject to all lawful deductions CA-00028491-002. Complaint under section 6 of the Payment of Wages Act, 1991. On the basis of the uncontested evidence, I find that the sum of €270 was properly payable on the 20 November 2018. I require the respondent to pay the sum of €270 to the complainant subject to all lawful deductions.
CA-00028491-003. Complaint under Section 39 of the Redundancy Payments Act, 1967 The grounds which must exist to satisfy the definition of genuine redundancy are set out in section 7(2) of the Redundancy Payments Act 1967 as amended. I find that section 7(2)(a) which states ”an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed” operates in the instant complaint. Based on the uncontested evidence I find that a genuine redundancy situation has arisen. The employer has ceased the business for which he employed the employee. Obligations on the Employer. Section 7(1) of the Redundancy Payments Act 1967 (amended) provides that; “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known as …. redundancy payment provided - a) he has been employed for the requisite period, and b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts 1952 – 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.” The complainant had the requisite service when the business closed down. Based on the uncontested evidence presented to me at the hearing, I find that she was in insurable employment and that she was made redundant with effect from January 20 November 2018. I find that the Complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Acts 1967- 2012.
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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-00028491-001. Complaint under section 6 of the Payment of Wages Act, 1991 I find the complainant to be well founded. I require the respondent to pay the complainant the sum of €396 subject to all lawful deductions. CA-00028491-002. Complaint under section 6 of the Payment of Wages Act, 1991. I find the complainant to be well founded. I require the respondent to pay the complainant the sum of €270 subject to all lawful deductions. CA-00028491-003. Complaint under Section 39 of the Redundancy Payments Act, 1967 Based on the evidence before me I am satisfied that the complainant was in employment with the respondent since 4 December 2012.I find that her employment terminated on 20 November 2018 by reason of redundancy. I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 4 December 2012 Date of Termination: 20 November 2018 Gross Weekly Pay: €396. This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
Dated: 6th December 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Non -payment of wages. Redundancy |