Complainant

Respondent

Parties

Pawel  Kedzior

MBC Products (Ireland) Ltd.

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-00057032-001

08/06/2023

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

CA-00057032-002

08/06/2023

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

CA-00057032-003

08/06/2023

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

CA-00057032-004

08/06/2023

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

CA-00057032-005

08/06/2023

The Complainant outlined that he had worked for the Respondent company from 1/3/2020, 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.

Deficiencies in relation to communication by the Respondent company were outlined: A family member of the CEO had acted as interpreter, no reason was provided, 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. He gave evidence that he had worked forty (40) hours per week fitting windows and doors for the Respondent company, and that he also drove a van.

He submitted payslips which set out his gross monthly pay at €2,916.67.

He said that for the last year, he had only received pay in respect of two of the more recent bank holidays (the ones during the Christmas period) but had not received the previous ones and had not been paid in respect of January 1st 2023, and that he had received no paid annual leave. He further submitted that for the three weeks prior to layoff, he did not receive three weeks’ wages which he was owed in respect of work he had done, i.e. that in respect of the second, third and fourth week of January 2023, he had worked and received no wages. He also outlined that he had received no notice pay, and submitted that on a statutory basis, he is entitled to two weeks’ notice pay.

The Adjudication Officer allowed the Complainant to submit payslips subsequent to the hearing, and twice extended the timeframe allowed to do so.

The Complainant filed a complaint under the Unfair Dismissals Act 1977 (CA-00057032-001) and under the Redundancy Payments Act 1967 (CA-00057032-002).

The Complainant outlined that he had worked for the Respondent company from 1/3/2020, 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 there were other monies outstanding to him, in particular, in relation to payment of wages (three weeks in January 2023, public holidays, and statutory annual leave, as well as statutory notice pay.  

CA-00057032-003 pertains payment in respect of public holidays. He outlined that he did not receive payment in respect of the public holiday on January 1st, 2023, or the other public holidays prior to the Christmas period.

CA-00057032-004 pertains to outstanding wages. The Complainant provided payslips indicating a gross monthly wage of €2,916.67 (i.e. €35,000 gross). He gave evidence that he had done three weeks’ work for which he received no pay, at the end of his employment. In respect of the hours he worked, he outlined that he worked forty hours per week. He further outlined that he was entitled to two weeks’ statutory notice pay which he had also not received.

CA-00057032-005 pertains to the non-payment of annual leave. He outlined that, absent perhaps a day, he had not received paid annual leave in the previous year.

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

CA-00057032-001: 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-00057032-002.

CA-00057032-002: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 Complainant’s 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-00057032-003

Public holidays dates in Ireland are:

·        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-00057032-004: Outstanding Wages & Statutory Minimum Notice Pay

The Complainant gave uncontested evidence that he did three weeks’ work, towards the end of his employment, for which he did not receive his salary.

He gave evidence that he had not received his statutory notice pay either, 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.

Given the undisputed evidence of the Complainant, I am satisfied that he was not paid in the amount of €1,346.16, namely two week’s notice, in respect of his notice entitlements.

He further gave undisputed evidence that he had not been paid his salary for three weeks prior to the period of lay off.

CA-00057032-005: Outstanding annual leave.

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”   

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Annual leave on cessation of employment is set out in s.23, 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 statutory entitlement under this legislation is to 4 weeks or 20 days annual leave per year. The Complainant gave evidence that other than perhaps a day, he had not taken his annual leave in 2022, leaving 19 days of his statutory 20 day annual entitlement unpaid and outstanding. On the basis of his uncontested evidence, I find that he has discharged the applicable burden of proof, and I find this complaint to be well-founded.

CA-00057032-001 – Unfair Dismissal: For the reasons set out above, I find that the Complainant’s role was made redundant. I therefore find that this complaint is not well founded.

CA-00057032-002 – 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: 1/3/2020

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: €673.08

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

CA-00057032-003 – outstanding 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 €134.62 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-00057032-004 – unpaid wages and outstanding statutory notice pay: I find that this complaint is well founded. I accept the uncontested evidence of the Complainant.

I direct the Respondent to pay the Complainant €2,019.23 gross  (€673.08 x3 weeks), less any lawful deductions which are reasonable in the circumstances, in respect of the three weeks’ unpaid wages owed to the Complainant (pertaining to January 2023); and I further direct the Respondent to pay the Complainant €1,346.16 gross (€673.08 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.

CA-00057032-005 – outstanding annual leave

The Complainant gave evidence that he was owed 19 days of outstanding annual leave at the end of his employment in the amount of €2,557.04 (19 days). Based on his uncontested evidence, I find that this complaint is well founded, and I direct the Respondent to pay the Complainant €2,557.04, in respect of his outstanding annual leave.

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