ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00012435
Parties:
| Complainant | Respondent |
Anonymised Parties | An employee | A communication company. |
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-00016377-001 | 18/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00016377-002 | 18/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016377-003 | 18/12/2017 |
Date of Adjudication Hearing: 13/06/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
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 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent from 14/02/2015 until 16/06/2017. Initially employed as a part-time ‘Sales Consultant’ in May 2014 on the basis of a stamp 2 visa he commenced as a full-time employee in February 2015 when he gained a Graduate Scheme Visa. In July 2015 the Respondent wrote to the Department of Jobs, Enterprise and Innovation supporting an application for a work permit. The Work Permit was granted on 01/10/2015, the permit clearly states that the holder, the Complainant, will be employed as an International Sales and Marketing Executive and his weekly remuneration will be €586.53. On 24/02/2016 the Respondent wrote to the Department of Jobs, Enterprise and Innovation advising that the Complainant was no longer employed as an International Sales and Marketing Executive as the position was no longer viable in the Respondent organisation and that the permit holder, the Complainant, had been re-deployed to the position of Field Sales Executive. On 5th June 2017 the Complainant was notified that his position was being made redundant with immediate effect and that his employment with the Respondent would cease on 16th June 2017. This complaint was received by the Workplace Relations Commission on 18th December 2017. |
Summary of Complainant’s Case:
CA – 00016377 – 001 – complaint under section 6 of the Payment of Wages Act, 1991. The Complainant alleges that he was underpaid throughout his employment. In 2016 it Is contended that he should have been paid €30,500 but was only paid €15,983.37 and in 2017 he should have been paid (for a 25 week period) the sum of €14,663.50 but was only paid €7,045.77, when added together, a sum of €22,134.54. These figures are based on the amount provided by the Respondent in support of a work permit application. CA – 00016377 – 002 – Complaint under section 39 of the Redundancy Payments Act, 1967. The Complainant is alleging that the only reason he was made redundant was that he reported his employer to the WRC Inspectorate section regarding what he believed to be his unpaid wages. The Complainant points out that he does have two years’ service and therefore is entitled to a statutory redundancy payment. CA – 00016377 – 003 – Complaint under section 8 of the Unfair Dismissals Act, 1977. The Complainant feels that this was not a true redundancy situation, he contends that he was dismissed from employment for reporting the Respondent to the WRC Inspectorate.
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Summary of Respondent’s Case:
The Respondent initially raised a preliminary question in relation to time limits and by letter dated 11th February 2018(date on letter erroneously stated as 11th February 2019) wrote to the Workplace Relations Commission stating: “The Complainant (name redacted) was indeed an employee of the Respondent (name redacted), however his employment ended on 16th June 2017. In relation to his complaint the Complainant (name redacted) is outside the six month period and as he states he has received legal advice so therefore we respectfully request that commission adhere to the regulations in regard to the timeline of bringing a complaint and that this complaint is outside the specific timeline. We trust this matter is now closed”. On 5th June 2017 the Respondent’s Chief Operations Officer wrote to the Complainant advising that further to his meeting with the Managing Director the job he was employed in no longer existed and was being made redundant, this letter states: “Unfortunately you do not in this instance qualify for a redundancy payment under the Redundancy Payment Act 1967 – 2014, as you do not have the required length of service. This letter therefore serves you notice that your employment with the Respondent (name redacted) will cease as of the 16th June 2017. We will write to the Department informing them that you are no longer in employment with the Respondent (name redacted)”.
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Findings and Conclusions:
There are three parts to this complaint: CA – 00016377 – 001 – complaint under section 6 of the Payment of Wages Act, 1991. CA – 00016377 – 002 – Complaint under section 39 of the Redundancy Payments Act, 1967. CA – 00016377 – 003 – Complaint under section 8 of the Unfair Dismissals Act, 1977. My findings are as follows: CA – 00016377 – 001 - complaint under section 6 of the Payment of Wages Act, 1991. Sections 6(1) and 6(4) of the Payment of Wages Act reads as follows: (1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing to it and shall communicate the decision to the parties. (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him in writing within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable. This complaint was received by the Workplace Relations Commission on 18th December 2017, a date outside the period of six months. The Complainant has stated that he was late due to not knowing what the correct platform on which to make the complaint was. The Respondent contends that the Complainant had the benefit of legal advice. This complaint is out of time and therefore fails. CA – 00016377 – 003 – Complaint under section 8 of the Unfair Dismissals Act, 1977. Sections 8(1) and 8(2) of the Unfair Dismissals Act, 1977 read as follows: (1) A claim by an employee against an employer for redress under this Act for the unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or the Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim. (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purpose of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period. This complaint was received by the Workplace Relations Commission on 18th December 2017, a date outside the period of six months. The Complainant has stated that he was late due to not knowing what the correct platform on which to make the complaint was. The Respondent contends that the Complainant had the benefit of legal advice. This complaint is out of time and therefore fails. CA – 00016377 – 002 – Complaint under section 39 of the Redundancy Payments Act, 1967. The fact that the Complainant’s position was made redundant is not in dispute. The dates of employment, agreed at hearing, are as stated on the complaint form i.e. 14/02/2015 to 16/06/2017. Section 24 of the Redundancy Payments Act 1967 (as amended) reads as follows: 24. Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment – (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39. This complaint was made within time limits and as previously stated the fact of redundancy is not in dispute and likewise the dates of employment were accepted at hearing. In relation to weekly wages I have taken the figure given by the Respondent to the Department of Jobs, Enterprise and Innovation i.e. €586.53 per week. I now order the Respondent to make a statutory redundancy payment of €3,331.49. Such payment should be made to the Complainant within 42 days from the date of this notice.
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Decision:
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.
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.
As outlined above. |
Dated: 31/01/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Redundancy, Dismissal and Payment of Wages. |