Complainant

Respondent

Parties

Evan  Verveen

CBTax

Representatives

Self-Represented

Ms Fuller, Company Manager

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-00067460-001

18/11/2024

The issue in contention concerns the alleged non-payment of Notice and Holiday pay to the Complainant, a Technical Consultant by a Financial & Taxation Advisory Company. The employment began on the 12th August 2024 and ended, as alleged, by the Complainant, on the 21st October 2024.

The rate of pay was stated to have been €4,167 per month for a 37.50-hour week.

The Complainant was self-represented. He gave a detailed Oral testimony supported by copy e mail correspondence/ pay slips etc.

The essence of his case was that following the exits of three of his colleagues (Team membership was 4 persons) over the weekend of the 19/21st October 2024, he was asked over the phone/TEAMS by the Technical Director, Mr SB, to assume complete responsibility for the Irish Operation. He replied that he could not do this as a one-man band. The workload would be excessive. This call was followed by a further TEAMS call from the CEO, Mr CB, who stated that he now believed that the Complainant was resigning. The discussion went back and forth. The Complainant stated that the request to be paid a week’s notice (save for Thursday the 24th when he would be at a Family Funeral) was agreed to by the Respondent CEO. He believed that he would be paid even if he did not come into/log on to work.

 A detailed Handover of files took place that afternoon.

The following day the Complainant was contacted by Head Office HR to confirm that he had verbally resigned. The Complainant immediately denied this but never received any reply from HR. He was by then locked out of the Respondent IT Systems. The following week the Complainant received his Pay Slip which showed that he had not been paid for the notice week and was still due to be paid for holidays.

Efforts at resolution proved unsuccessful and he referred the case to the WRC.

The Respondent was represented by HO Manager, Ms F. A written submission was presented and supported by extensive Oral testimony. Additional material was presented Post the Hearing.

Regarding the two main issues the Respondent position was as follows

Notice

The Complainant, in his call to the CEO on the 21st, stated that he had already physically left the Office. His Company I Pad/mobile systems were left on his desk. This made any further work impossible, and the Complaint was locked out of the System. Notice Pay, unless agreed otherwise, requires that the Notice Period be worked. This did not happen, and no pay was due.

Holiday Pay

The Respondent presented a detailed analysis of the Complainant’s attendance record. This showed that the complaint had considerable unexplained / unauthorised absences / time outs amounting to a value of some €1,307 Gross - essentially an “over payment”. The claimed Holidays came to a value of €711.53.

No Holiday Pay was due in these overpayment circumstances.

In addition, there was a question of a small overpayment of expenses.

Legal issues

3:1       Notice Pay

This is governed by the Minimum Notice and Terms of Employment Act,1973 -Sections 4 and 6 quoted below. This definition and commentary on “Notice” would inform any complaints under the Payment of Wages Act,1991 as in this case.

Sections 4 & 6 of the Minimum Notice and Terms of Employment Act,1973 -

Minimum period of notice.

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,

Right of employer to notice.

6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

Regrettably for the Complainant a qualifying period of 13 weeks is required for the Act to apply. The period of employment of the Complainant in this case was 10 weeks or 70 calendar days and thus outside the coverage of the Act.

The issue in dispute here would then effectively become a Contract Law issue – both Parties gave Sworn Evidence which was clearly contradictory. Ms, F for the Respondent was not a party to any of the Conversations between the CEO and the Complainant on the 21st of October 2024 where Working/Not working the Notice Period was discussed. All she could offer were basically hearsay reports of her later conversations with the CEO.

Clause 7 .4 of the Contract of Employment stated that.

“In the event of termination of your employment by either Party, the Firm may, at its sole discretion, pay to you your basic salary together with the costs to the firm of providing the benefits referred to in this agreement in lieu of notice less applicable deductions”.

“Applicable Deductions” was not clarified although the Respondent carried out a quite forensic examination of the Complainant hours/Attendance etc to arrive at an “overpayment” figure of €1,307.69 figure alleged to the Respondent. The Complainant vigorously contested this Forensics examination and alleged that many of the days referenced were in fact days he had worked often outside of the Office clock in System.

3:1:2       Conclusion

Notice Pay

A “judgment of Solomon” is required from the Adjudication Officer. On balance and having heard both sides credible but contradictory evidence , an ex gratia award of one day’s pay – rounded to €200 , in favour of the Complainant, is made.

3:2     Holiday Pay

The legal position on Holiday Pay is set out in the Organisation of Working Time Act ,1997. The question of deductions from Wage/Salary and by extension Holiday Payments, is at Section 5 of the Payment of Wages Act,1991.

Good employment practice and considerable Legal Precedents/Case Law would be to regard properly accrued Holiday Pay as virtually “untouchable” especially on the Termination of Employment.

Section 5 of the Payment of Wages Act,1991 would require the Respondent to have engaged in prior discussions and agreements with the Complainant prior to making deductions in Holiday Pay. This clearly did not happen.

3:2:1        Accordingly, the value of Holiday Pay claimed of €825 is awarded to the Complainant.

Notice Pay, Holiday Pay