ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022619
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 01/10/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 6 of the Payment of Wages Act 1991 and/or Section 27 of the Organisation of Working Time Act 1997 ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant was employed as General Manager with the respondent from the 2nd.May 2005 to the 23rd.April 2019 earning €28,366 per week.The owner (Mr X)of the company was primarily based in the UK .It was submitted that towards the end of 2018 over a 2 month period , the claimant’s pay was delayed and in January 2019 , the claimant received no pay while his colleagues continued to be paid. On the 4th.Feb. 2019 the claimant arrived early to work and was assured by Mr X that he would be paid , that there was a funding problem but all would be sorted .It was suggested to the claimant that he go home before the other staff arrived to avoid “ any appearance business was not as usual”.Mr X stated that he needed further time to source additional funding. Mr X told the office the claimant would be absent.On the 5th.Feb.2019 , the claimant rang in sick as per the instructions from Mr X who informed the staff that the claimant was out sick.It was submitted that for the survival of the business , the claimant actually attended work that night .The claimant ‘s representative set out a chronology of the ensuing conversations between the claimant and Mr X .On the 11th.Feb.Mr X , having been unsuccessful in sourcing additional funding suggested the claimant apply for Jobseekers support as a short term solution.The claimant received his January pay on the 13th.Feb. 2019.
On the 15th.Feb. 2019 , the claimant was advised in writing by Mr X that his role as General Manager was being considered for redundancy. Alternative roles were offered to the claimant but were declined on the basis that the proposed salary was less than half of the claimant’s current earnings , that it was viewed as the claimant as demotion and it involved a travel requirement. On the 29th.March the claimant was advised of his end date of employment of the 23.04.2019 – notice of redundancy had been issued to the clamant on the 12th.March 2019.The RP 50 was signed by Mr X and the redundancy payment was calculated as €15,805.69.It was submitted that the respondent had acknowledged the claimant’s entitlement to redundancy having signed the RP50 and confirmed the sum due and owing to the claimant.
It was submitted that the respondent was in breach of the Payment of Wages Act 1991 for failing to pay the claimant wages from the 4th.Feb. 2019 -15th.Feb. 2019 when the claimant remained off work in accordance with the wishes of Mr X. It was submitted that the claimant agreed to take sick leave during this period “ to provide the appropriate story to the other employees as to why he was absent”.It was advanced that it was always the understanding of the claimant that he would be paid for this period.According to the claimant he was told to stay away and pretend to be sick.The amount outstanding was calculated as €1,090.80.
It was submitted that the respondent was in breach of the Organisation of Working Time Act 1997 for failing to pay the claimant outstanding annual leave which had been carried forward from 2018 and previous years.It was contended that it was custom and practise in the company to carry forward leave from one year to the next .
In his direct evidence , the claimant stated that there was never any suggestion that he wouldn’t be paid – he stayed at home for the benefit of the Company and Mr X. He indicated that if he had been unwell he would have been paid sick pay.It was submitted that the first time the claimant became aware of any dispute was on the 27th.May 2019 and it was contended that there was no lawful basis for withholding either wages or the claimant’s redundancy.It was submitted that the claimant was no longer an employee when the issue of GDPR surfaced and no disciplinary sanction had been initiated against the claimant.It was submitted that there was no reference to a GDPR policy in the cliamant’s contract of employment.
It was accepted by the claimant that he did not seek prior approval to carry forward the disputed leave of 14.5 days – he said in his direct evidence that he did not realise he had to seek prior approval as he never had to seek prior approval previously.The claimant stated that he left the office in good faith expecting to be paid during the disputed February period.The claimant stated that when he returned to work at the beginning of January, he had lined up significant volumes of work for the following months.He asserted he saw improved times ahead with plenty of work to do.It was submitted on behalf of the claimant that no investigation had been carried out in relation to the alleged GDPR breaches and that consequently , it could not be assumed that the claimant would have been fired.
Summary of Respondent’s Case:
The respondent’s representative sought to have the proceedings adjourned on the basis of the absence of the joint director Mr X who was unable to attend owing to a family commitments .An adjournment was not granted because the respondent had previously secured a postponement and there was no convincing evidence advanced to indicate that the respondent would attend a hearing on a revised date.
It was accepted by the respondent’s representative that there had been no dispute in relation to redundancy when the RP50 forms were completed by Mr X and the claimant.It was contended that the disputes arose when information came to light following the claimant’s departure from the company.It was asserted that the claimant was using company time to carry out tasks relating to the cliamant’s wife’s child care business.The information was discovered on a hard drive after the claimant’s employment had ended.It was contended that if the information had come to light while the claimant was still an employee that the claimant would have been dismissed.It was advanced that a number of children’s details were found on the hard drive and that the respondent’s systems had been used to print various leaflets about the claimant’s wife’s child care business.It was submitted that had this been known when the claimant was employed , disciplinary proceedings would have ensued.It was submitted that the respondent would have to write to the parents of the children whose information was on their system and explain that they were holding data on behalf of people who were unaware of same.It was submitted that there were significant cost implications for the respondent and that the respondent was potentially liable for prosecution. The respondent’s representative stated that he noted that the claimant was not denying using the respondent’s systems for business related to his wife’s child care business.
It was asserted that the claimant’s contract required that prior permission to carry forward leave had to be obtained .
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
I have reviewed the evidence presented at the hearing and noted the respective position of the parties.I note there was no dispute between the parties in relation to the redundancy when notice was issued to the claimant and that it was only after the fact that the respondent sought to retrospectively sanction the claimant for matters that later came to light after the claimant’s employment ended .On the basis of the evidence presented , the claimant was made redundant and was not offered suitable alternative employment.Accordingly , I am upholding the complaint under the Redundancy Payments Acts 1967-2012 and find that the claimant is entitled to a redundancy payment based on the following criteria :
Date of Commencement : 02/05/2005
Date of Termination : 23/04/2019
Gross Weekly Pay : €545.40 per week
This award is made subject to the claimant having been in insurable employment under the Social Welfare Acts during the relevant period.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
On the basis of the uncontested evidence of the claimant I have concluded that the claimant had, on foot of the exchanges with his manager , a legitimate expectation of being paid for the disputed period and accordingly I find the withholding of the payment constituted an illegal deduction under the Act.I require the respondent to pay the claimant €1,090.80 within 42 days of the date of this decision.
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and noted the respective position of the parties .While I acknowledge that the claimant’s contract provides for “ Unused holidays generally cannot be carried over from one year to the next without prior approval” , the documentary evidence submitted by the claimant supports his contention that it was custom and practise within the company to carry forward leave .Accordingly , I am upholding the complaint and require the respondent to pay the claimant €1,527.12 for the loss incurred in the non payment of outstanding leave.
Workplace Relations Commission Adjudication Officer: Emer O'Shea