ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00016571
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hotel manager | The liquidator of a hotel |
Representatives | Emma Cassidy BL instructed by Amorys Solicitors | None |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00021526-001 | 03/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00021526-002 | 03/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00021526-003 | 03/09/2018 |
Date of Adjudication Hearing: 09/11/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 3rd September 2018, the complainant referred complaints pursuant to the Payment of Wages Act, the Unfair Dismissals Act and the Redundancy Payments Act. The complaints were scheduled for adjudication on the 30th November 2018.
Complaints were made against both this respondent and another respondent (subject to a report in ADJ 16570). One respondent is the receiver appointed by NAMA to manage the hotel where the complainant worked; this respondent is referred to as the ‘receiver’ in both reports. The second respondent is the hotel group in liquidation / the liquidator appointed following the liquidation of the hotel group that operated the hotel; this respondent is referred to as ‘the liquidator’. This report relates to the liquidator respondent.
Both sets of complaints were heard at the same time. The complainant was represented by Emma Cassidy BL instructed by Amorys Solicitors. The receiver attended to meet the claims against it. It was represented by Tom Mallon, BL instructed by Ivor Fitzpatrick & Co Solicitors. There was no appearance by or on behalf of the liquidator. I verified that the liquidator was properly on notice of the time, date and venue of the adjudication. Having been satisfied as to service, I proceeded with the hearing in the absence of the liquidator.
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 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.
Summary of Complainant’s Case:
The complainant outlined that the liquidator had not replied to the complaints referred against it.
The complainant said that he started as operations director in April 2013, where he looked after the nightclub and the restaurant. The nightclub closed in January 2018, to be refurbished and re-opened by February 2018. The complainant continued to manage the restaurant. The hotel was then managed by the receiver, following its appointment by NAMA.
On the 10th May 2018, the hotel group notified the complainant of a transfer of undertaking, which took place on the 23rd May 2018. On the 25th May 2018, a named manager phoned the complainant to say that he was now managing the hotel. The complainant was told that there was no role for him and he was asked to handover keys, codes and passwords. The complainant replied that he had worked at the hotel for five years and challenged his dismissal. The manager said he would check with the receiver and later confirmed the instruction that the complainant was being dismissed. The complainant received the email of the 7th June 2018 to say that a new entity would manage the hotel but would not employ existing staff.
The complainant sought compensation as redress. He could not say what was the date of dismissal and he had not received a P45. The complainant said that, following his dismissal, he earned €3,000 between May and November and had since started his own business. He was now paid an annual salary of €65,000. The complainant said that he had previously obtained redress from the Workplace Relations Commission for unpaid wages of €17,000 between January and May 2018. Through this complaint, he seeks redress for unpaid wages after May 2018.
In questioning, the complainant said that he started working for the hotel group in April 2013. Prior to this, he was self-employed for about a year. He was the operations director of the hotel group, managing the entertainment venue and restaurant. He reported to a named director and was paid by the hotel group. He was aware that the hotel group was a tenant and did not own the building. The landlord was NAMA under an asset receivership. The entertainment venue closed in January 2018 and reopened in May 2018. He was paid for one week in January and brought the case to the WRC for unpaid wages. It was put to the complainant that the WRC decision refers to the complainant’s employment ending on the 23rd May when the hotel company went into liquidation; he could not remember saying this at the previous adjudication. He had claimed 17 weeks’ pay from the period of January to May 2018.
The complainant said he asked the receiver for a P45 and none was forthcoming. He attended work every day between January and May as the restaurant was still trading. They also prepared for the reopening of the nightclub. He did not accept that he was not involved in the restaurant after 2014. He accepted that he never worked for the company that took over the hotel. |
Summary of Respondent’s Case:
The liquidator did not attend the adjudication. He wrote to the Workplace Relations Commission on the 10th October 2018 to say that he was appointed on the 23rd May 2018. He states that any claims for wages in arrears, statutory notice and redundancy that can be vouched and verified will be processed within the liquidation. |
Findings and Conclusions:
In my report in ADJ 16570, I have found that the complainant was an employee of the receiver and dismissed by the receiver. As a result, I formally find that the complaints against the liquidator under the Unfair Dismissals Act and the Redundancy Payments Act are not well-founded.
The complainant has already obtained redress against the hotel group (now in liquidation) in ADJ 15026 for unpaid wages between January and May 2018. I, therefore, find that the instant claim under the Payment of Wages Act is not well founded.
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Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of 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.
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-0002121526-001 I find that the complaint made pursuant to the Payment of Wages Act is not well founded.
CA-0002121526-002 For the reasons set out above, the claim pursuant to the Unfair Dismissals Act is not well founded.
CA-0002121526-003 I find that the complaint pursuant to the Redundancy Payments Act is not well founded. |
Dated: 23/07/19
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Company in liquidation |