Complainant

Respondent

Parties

Pawel  Skrzypczak

J.M.S International Holdings Ltd T/A Shanahan's On The Green

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00067250-001

08/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00067398-001

14/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067398-002

14/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067398-003

14/11/2024

The Complainant was employed as a Chef with the Respondent from 21 April 2005 to 26 October 2024. He earned a gross weekly wage of €730.77.

He stated in the first instance that he did not receive his statutory redundancy entitlements when his employment was terminated on the grounds of redundancy. He also stated that he did not receive either his minimum notice entitlements, his last week’s pay or his accrued bonus.

The Complainant stated that he received an email from the Respondent’s payroll/accounts department on 13 October 2024 stating that the restaurant would be closed until further notice. He subsequently received further correspondence on 26 October 2024 stating that the restaurant would not reopen.

He stated in the first instance that he did not receive his statutory redundancy entitlements when his employment was terminated on the grounds of redundancy.

He also stated that he did not receive either his minimum notice entitlements of eight weeks’ pay, his weeks’ pay for the last week that he worked or his accrued bonus of approximately €700, which was paid to him in cash every December.

Although I am satisfied that the Respondent was on notice of the hearing, they did not attend on the day.

CA-00067250-001:

THE LAW

Section 7(2) of the Redundancy Payments Act, 1967, states:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed, or

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

ANALYSIS

On the basis of the evidence presented to me, namely that the Respondent “has ceased,…. to carry on the business in the place where the employee was so employed”, I am satisfied that the Complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967-2014.

CA-00067398-001

THE LAW

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

ANALYSIS

On the basis of the evidence presented to me, I am satisfied that the Complainant did not receive his minimum notice entitlements when he was dismissed. Consequently, I find this complaint to be well-founded. Specifically, considering his length of service, which exceeded fifteen years, he is entitled to eight weeks’ notice pay.

CA-00067398-002:

THE LAW

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

ANALYSIS

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

On the basis of the evidence presented to me, I am satisfied that the Complainant did not receive his last week’s pay prior to his dismissal from his employment. I therefore find that this complaint is well founded.

CA-00067398-003:

THE LAW

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

ANALYSIS

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

On the basis of the evidence presented to me, I am satisfied that the Complainant always received an annual bonus of approximately €700 cash each Christmas. As there was no contractual terms or rules around the payment of his bonus presented to me, I find that the Complainant is entitled to an annual bonus payment and that the complaint is therefore well founded.

CA-00067250-001:

I allow the Complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2014 based on the following criteria: 

-          Date of commencement:  21 April 2005

-          Date of termination: 26 October 2024

-          Gross weekly wage: €730.77

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00067398-001:

I find that this complaint is well founded for the reasons set out above. As he is entitled to receive eight weeks’ pay in respect of his notice entitlements, I make an award of €5,846.16 (8 weeks * €730.77). This is subject to taxation and the normal statutory deductions.

CA-00067398-002:

I find that this complaint is well founded for the reasons set out above. I make an award of one weeks’ pay, namely €730.77. This is subject to taxation and the normal statutory deductions.

CA-00067398-003:

I find that this complaint is well founded for the reasons set out above and make an award of €700. This is a net payment and is therefore not subject to taxation and the normal statutory deductions