ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055367
Parties:
| Complainant | Respondent |
Parties | Kelly Douglas | PJB Management Limited |
Representatives |
| John Sharpe |
Complaints:
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-00067441-001 | 17/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00067441-002 | 17/11/2024 |
Date of Adjudication Hearing: 10/02/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, the Director General of the WRC may make a referral of said matter to the Adjudication Services.
Following said referral, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
It is noted that the Complainant herein is alleging three categories of pay have been unlawfully deducted and there are - pay in lieu of Notice, Holiday pay and remuneration.
The Complainant herein has also referred a second matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work.
The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
The workplace relations complaint form issues on the 17th of November 2024 and I can consider such contravention of the Acts which are alleged to have occurred within the six-month period prior to that date (period from 18th of May 2024 to the 17th of November 2024). The Complainant was in employment up to the 20th of May 2020 with her final remuneration due to her on the 31st of May 2024.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 17th of November 2024. In general terms I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed has is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission set out in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in the form of the Contract of Employment. No issue was made in relation to that document being relied upon. The Evidence adduced by the complainant was vigorously challenged by the Respondent witness. The Complainant alleges that her Employer unlawfully withheld monies due to her at the end of her employment with the Respondent Company/Employer. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance as well as the time limits imposed by Statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by a Mr. John Sharpe who identified as the owner of the company. All Mr. Sharpe’s evidence was heard following an Affirmation. The Respondent rejects that there has been any contravention of the Complainant’s Statutory Rights. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The Complainant works in HR and was recruited to work in the Respondent company starting in the November of 2021. The Complainant was on an annual salary of €40,000.00, giving a gross weekly salary of €770.00. I understand from the Complainant’s evidence that issues arose in the workplace which was creating a difficult environment for employees including herself. She described the atmosphere as toxic. At a point unknown but before May of 2024, the Complainant was approached by a competitor company and asked to come and work for them. The competitor company was offering a salary bump which was hard for the Complainant to resist. The Complainant approached the relevant manager Mr. Sharpe to give Notice of her intention to leave the workplace. In circumstances where the Complainant had been working in the company for more than two years, the Complainant was obliged to, and intended to, work through her two weeks’ Notice period. The said Notice was provided to the Employer on the 20th of May 2024. Mr. Sharpe gave evidence that he was disappointed, and perhaps also angry, that the Complainant was leaving. He gave evidence that a number of his staff all left in and around this period of time and his sense was that the competitor was intentionally setting out to undermine the Respondent’s position in the market. In the circumstances, and at the direction of Mr Sharpe, the Respondent company froze any and all remuneration due to the Complainant and which would have been payable after the 20th of May 2024. In fact, the Respondent witness further confirmed that he had declined the Complainant’s offer to work out her Notice period, and the Complainant had therefore left the workplace on the 20th of May 2024. The Complainant explained that she was not therefore paid the remuneration due to her for the two and a half weeks she had already worked in May of 2024 and before she had ever tendered her resignation on the 20th of May. The Complainant said that she also not paid her accrued annual leave of eight days, which ought rightly to have been paid to her as part of her last remuneration payment. Lastly, the Complainant says she is entitled to have been paid in lieu of the Notice period that she was not allowed to work for. I appreciate that the Respondent was very vexed at the idea that he continued to have a financial liability to the Complainant in circumstances where he asserts her departure was an act of betrayal of the trust he had placed in her. However, I am bound to confirm that the Complainant’s entitlements arise by operation of law, and it was never in the Respondent’s authority or power to simply refuse to pay the Complainant what was due to her no matter what the circumstances of her departure. I am therefore finding that the Complainant is owed 14 days pay for those days she worked up to the 20th of May of 2024. The Complainant is further entitled to 10 days’ pay in lieu of Notice. I also accept the uncontradicted evidence of the Complainant that she had accrued 8 days annual leave at the end of her employment. The Complainant’s daily rate of pay was €154.00. The Complainant was unable to demonstrate any entitlement under the Terms of Employment (Information) Act. The Complainant had been provided with a Contract of Employment at the start of her Employment and any alleged changes which may or may not have been made to the terms of that Contract did not occur in the six months immediately preceding the 17th of November 2024.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00067441-001 – The Complaint herein is well founded, and I direct that the Respondent does pay to the Complainant the sum of €4,930.00 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067441-002 – The complaint herein is not well founded and fails.
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Dated: 14th March 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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