Complainant

Respondent

Parties

Sebastian  Drygalski

MBC Products (Ireland) Limited

Representatives

Independent Workers Union

 No appearance

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057031-001

08/06/2023

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

CA-00057031-002

08/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057031-003

08/06/2023

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

CA-00057031-004

08/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057031-005

08/06/2023

The Complainant outlined that he had worked for the Respondent company from 1/6/2019, that he was placed on lay off on 1/2/23, and that he then tried to trigger redundancy on 2/3/23, four weeks later (by sending a RP9 form) and received no response.

The Complainant outlined deficiencies in relation to communication by the Respondent company. He explained that a family member of the CEO had acted as interpreter, that no reason was provided, that employees were moved to a different section for a short time, and then shortly thereafter told that there was no job, but provided with no reason as to why.

Evidence was adduced that the Respondent company was now in liquidation.

The Complainant broadly outlined other identified deficiencies as well – lack of contract, difficulty obtaining payslips, taking on additional responsibilities for which was not paid. He outlined that he felt that there were other monies outstanding to him, in relation to statutory entitlements, and the rate of pay he received. He said that he was paid less than someone with two years’ experience who is a construction operative, whereas he worked for the Respondent company for four years and had previous experience as well. He further outlined that he had not received his statutory minimum notice pay.

The Adjudication Officer allowed the Complainant to submit payslips subsequent to the hearing, and extended the time-frame allowed to do so.

The Complainant filed a complaint under the Unfair Dismissals Act 1977 (CA-00057031-001) and under the Redundancy Payments Act 1967 (CA-00057031-002).

The Complainant outlined that he had worked for the Respondent company from 1/6/2019, that he was placed on lay off on 1/2/23, and that he then tried to trigger redundancy on 2/3/23, four weeks later (by sending a RP9 form) and received no response.

The Complainant outlined deficiencies in relation to communication by the Respondent company. He explained that a family member of the CEO had acted as interpreter, that no reason was provided, that employees were moved to a different section for a short time, and then shortly thereafter told that there was no job, but provided with no reason as to why.

Evidence was adduced that the Respondent company was now in liquidation.

The Complainant broadly outlined other identified deficiencies as well – lack of contract, difficulty obtaining payslips, taking on additional responsibilities for which was not paid. He outlined that he felt that there were other monies outstanding to him, in relation to statutory entitlements, and the rate of pay he received.

He submitted payslips which set out his gross monthly pay at €2426.62

CA-00057031-003 pertains payment in respect of public holidays. It was submitted that he was not paid correctly in respect of the public holiday falling on 1/1/23.

CA-00057031-004 pertains to the non-payment of notice pay and to the Complainant’s rate of pay.

The Complainant submitted that based on his length of service (more than two years but less than five) he was entitled to two weeks’ statutory notice pay which he did not receive.

The Complainant outlined that he was earning c. €30,000 per year, and he submitted payslips in support of that (gross monthly pay - €2426.62). He said that he was a team leader and was not paid for that. He asserted that he was paid less than someone with two years’ experience who is a construction operative, whereas he worked for the Respondent company for four years and had previous experience as well. He explained that he was a carpenter by trade, that he had nine years’ experience, and that he had worked as a door and window fitter in the Respondent company. He outlined that he had received no particular training for that role. The Adjudication Officer, at the hearing, enquired as to whether the Complainant had done any work for which he was not paid, i.e. were there any outstanding wages owed to him. He said: ‘No.’

In respect of the hours he worked, he outlined that he was working full-time. He indicated that had been working 160 hours per month, that he had started out working 173 hours per month, but that there was a recording error which indicated he was working 160 hours per week.

CA-00057031-005 pertains to untaken annual leave on cessation of employment.

No appearance was entered by or on behalf of the Respondent.

CA-00057031-001: Unfair Dismissal: I find that this complaint is not well founded. I find, based on the evidence given by the Complainant, that his role was made redundant, as set out below, under CA-00057031-002.

CA-00057031-002:Redundancy Payment: I find that this complaint is well founded.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

7(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that 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, or

(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,

Based on the uncontested evidence of the Complainant I find he was made redundant under Section 7 (2)(a). I allow the Complainants appeal and I award him statutory redundancy on the following basis Section 4(1) of the 1967  Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

CA-00057031-003:

Public holidays dates in Ireland, in the relevant year were:

·        New Year's Day (1 January)

·       First Monday in February, or 1 February if the date falls on a Friday

·        Saint Patrick's Day (17 March)

·        Easter Monday

·        First Monday in May

·        First Monday in June

·        First Monday in August

·        Last Monday in October

·        Christmas Day (25 December)

·        Saint Stephen's Day (26 December)

Section 21 of the Acts states as follows in relation to public holidays:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

The Complainant gave evidence that there was one public holiday (1/1/23) for which he was unpaid, within the relevant cognisable period (9/12/22 – 8/6/23). I find this complaint to be well founded.

CA-00057031-004: Minimum Notice & The Rate of the Complainant’s Pay:

In respect of the assertion that the Complainant should have been on a higher applicable rate of pay throughout his employment, I find, having considered that submission, that the Complainant’s complaint is not well founded.

In respect of the complaint re: the non-payment of minimum notice pay, I find that the Complainant’s complaint is well founded.

He gave evidence that he had not received his statutory notice pay, and that based on his years of service, he was entitled to two weeks’ statutory notice pay.

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 and,

(b)     any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

The definition of wages under the Payment of Wages Act specifically includes notice pay. The basis upon which the notice pay is calculated is set out under s. 4 of the Minimum Notice and Terms of Employment Acts 1973 to 2005, as follows:-

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.”

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.

The evidence in this case was that the Complainant was in employment for more than two years but less than five years, and, therefore he was entitled to two weeks’ notice pay, which is still outstanding. Given the undisputed evidence of the Complainant, I am satisfied that he was not paid in the amount of €1,120, namely two weeks’ notice, in respect of his notice entitlements.

CA-00057031-005:

The law pertaining to annual leave on cessation of employment is set out in s.23 of the Organisation of Working Time Act 1997, as follows:-

‘23.(1) Where –

(a)    an employee ceases to be employed, and

(b)   the whole of any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been.’

In Nolan Transport v Jakonis Antanas DWT 1117, the Labour Court set out the burden of proof applicable: “The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded…………. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the 14 requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut”.

The Complainant was not in a position to meet the burden of proof, as set out, in respect of CA-00057031-005. On the basis, I find that this complaint is not well founded.

CA-00057031-001 – Unfair Dismissal: For the reasons set out above, I find that this complaint is not well founded.

CA-00057031-002 – Redundancy Payment: I find that this complaint is well founded.

I allow the Complainant’s appeal under the Redundancy Payments Act 1967, based on the following criteria.

Date of Commencement: 1/6/2019

Date of Reckonable Service for Redundancy Payment: 1/2/2023

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

Gross Weekly Wage: €560

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

CA-00057031-003 – Public Holidays:

The Complainant gave evidence that he was owed one day of public holidays, within the applicable cognisable period (9/12/22 – 8/6/23). Based on his uncontested evidence, I find this complaint to be well founded. I direct the Respondent to pay the Complainant €112 in respect of the monies owed and outstanding, and a further €125 as compensation in respect of the breach (the Van Colson principles apply, i.e. the requirement for an effective deterrent).

CA-00057031-004 – Statutory Minimum notice pay - I find that this complaint is well founded. I direct the Respondent to pay the Complainant €1,120 gross (€560 x2 weeks), less any lawful deductions which are reasonable in the circumstances in respect of his outstanding statutory entitlement to notice pay, based on his length of service.

Rate of Pay/Wages: Having considered this complaint, I find that this aspect of the complaint is not well founded.

CA-00057031-005 – No clear evidence was adduced in respect of this complaint. I therefore find that this complaint is not well founded, as the Complainant was unable to meet the burden of proof required.

Redundancy; Respondent Company in Liquidation; Outstanding monies; Redundancy Payments Act 1967; Payment of Wages Act 1991; Minimum Notice and Terms of Employment Act 1973;