Complainant

Respondent

Parties

Keelan  O Connor

Coldwater Salmon Limited

Representatives

 A Friend

 Finance 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-00067612-001

22/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067612-002

22/11/2024

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

CA-00067612-003

22/11/2024

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

CA-00067612-004

22/11/2024

The Complainant was employed from February 26th  2024 to June 9th 2024 as a Trainee Hatchery Manager. His employment ended in disputed circumstances and he complained he was not paid his proper wages, was not paid his notice entitlement and was inappropriately deducted for holidays in his final pay.  He also claimed he was not notified of a change to his terms and conditions of employment but withdrew this complaint in between the Hearings.

The Complainant alleged he was under paid by 2736 Euros wages.

The Complainant alleged he was placed on temporary leave and told the situation would be reviewed in a few months. When he established that his employment had been ended the Complainant alleged he was not paid notice pay due of 1461.54 Euros.

The Complainant queried the validity of the deduction of 230 Euros from his final pay for more holidays taken than was his entitlement.

The Complainant withdrew his complaint under the Terms of Employment (Information) Act 1994 in between Hearings and also amended the value of his complaints in a submission between the Hearings.

The Respondent denied that any wages were due to the Complainant and that he had been fully paid what was due..

The Respondent stated the Complainant did not sign his contract of employment at the commencement of the employment (or at any stage) and questioned the validity of relying on the contract supplied to the Complainant to determine any matter related to the contract.

The Respondent contested that the Complainant was put on lay off and maintained he had verbally resigned on June 9th without giving any notice.

The Respondent submitted details of holidays taken to show that the Complainant had taken more holidays than he had earned and it was entitled to deduct the 230 Euros from the Complainants final pay.

CA-00067612-002   Terms of Employment

The complaint under the Terms of Employment (Information) Act 1973 was withdrawn in advance of the second Hearing.

CA-00067612-001Payment of Wages

Section 41 (6) of the Workplace Relations Act 2015 provides:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” This would normally mean that the cognisable period is from May 23rd 2024 to November 22nd 2024.  In relation to the complaint under the Payment of Wages Act 1991 the Adjudicator determines that the calculation of and thus the payment of the daily rate of pay is a continuing breach of the Act and therefore accepts jurisdiction of that complaint for the complete period of the Complainants employment.

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employees and in particular section 5(6 )states.

“Where—  

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The question for the Adjudicator to consider is what was properly payable during the employment and then to establish what was actually paid.

As neither party had signed the contract the Respondent queried whether the Adjudicator could rely on the contract at all to determine anything as it was not signed by either party. The Adjudicator informed the Parties that he was satisfied that while the contract was not signed by either party, this was the contract given to the Complainant at the commencement of his employment (this was not disputed)  and as per the Terrms of Employment (Information) Act 1994 once an Employer provides  a contract to an Employee (with the appropriate terms included) this satisfies that Act even if the contract was not signed.  Given the continuous contesting of all issues between the parties, the Adjudicator determined this contract is the appropriate starting point to review the complaint. The Adjudicator pointed out to the Parties that if he did not take this contract as a base then a significant further amount of dispute could ensue between the Parties regarding what was the verbal contract and evidence on oath would be required from both Parties on each particular relevant point of the verbal contract. Neither Party asked to pursue this approach.   I am satisfied to take this contract as the appropriate base to make a Decision on the Payment of Wages Act claim.

The Complainant was given a contract by the Respondent which stated that the Complainant would earn 38,000 Euros per year and this salary would accrue from day to day and would be paid on a monthly  basis. The contract stated that he would work 39 hours per week, Monday to Friday from 8am to 5pm and stated that given the nature of the Company’s business and the continuous rearing of fish the work week also included being available to be assigned part of the working hours of 39 on Saturday and Sunday and the hours worked on these days would not attract overtime but count for more than an hour  i.e. two hours for every hour worked on  a Sunday. 

I have considered the above wording and taken the literal legal meaning of the contract that the salary accrued on a daily basis as the Complainant had to be available for work seven days a week. The calculation therefore of pay properly payable is the annual salary divided by the number of days in the year. The Complainant submitted that his dally rate would accrue on a 5 day basis and therefore his assessment of what was due was higher than what I consider the contract wording entitled him to.  While there may be some validity to this in other circumstances the way the contract was worded and the requirement to be available 7 days a week leads me to conclude the appropriate way to determine the daily rate is as I have set out.

Based on the contract the Complainant was entitled to a daily rate for each day of 104 Euros and should have been paid the following for the days employed;

February 4 Days

March 31 Days

April 30 Days

May 31 days                                                                        

June 9 days                                                                      

Total Days employed;  105

Amount Due; 105 x 104 Euros =10920  Euros

Total    paid     9477.21 Euros                                                          

Balance due:   1442. 79 Euros                                                                     

I find the complaint is well founded and I award the Complainant 1442.79 Euros to be paid within 30 days of todays date.

CA-00067612-003 Minimum Notice entitlement  

The Complainant gave evidence of difficulties on the job and changes to the job that he was not satisfied with and in particular had concerns for his safety on the job (Details were provided to the Hearing but I do not deem it appropriate to document them here as it involves another person who was not at the Hearing). The Complainant stated he understood from a conversation he had with Mr. Peter Mc Govern that he was going on temporary short term lay off from June 9th and would be returning to work some months later. The Complainant attempted to apply for social welfare on that basis and sought documentation from the Respondent to assist with that claim but in was only 4/5 weeks later he found out his employment had  terminated and he claimed he was terminated without notice due under the Act. The Complainant was cross examined on his current work status and the Complainant stated this was irrelevant to the complaint. The Complainant was asked why he did not sign the contract, and he stated he forgot to sign it and he advised he could not recall if he was reminded to sign it. The Complainant was asked why did he walk off the Farm and he stated he did not walk off. He was asked did he have any evidence he was placed on temporary lay off and the Complainant replied, no.

Mr. Peter Mc Govern gave evidence to the Hearing and stated he set up the business 43 years ago and was now a Consultant on a three days a week basis to the business. He advised he was not an Employee and he introduced the Complainant to the job but had no authority to make hiring or firing decisions. He advised his role was to educate upskill and explain to staff. He advised that he visited the Farm on June 9th and had a conversation with the Complainant and that maybe there was a misunderstanding with the Complainant about the events on June 9th but he was very clear that the Complainant was unhappy and when he asked him did he want to “pack it up now” the Complainant said yes and left the employment.  Mr. Mc Govern stated he asked the Complainant would he work his notice and the Complainant informed him that as he had not signed any contract he did not have to work notice. Mr. Mc Governs evidence was the Complainant resigned without giving any notice. Mr. Mc Govern was cross examined by the Complainants Representative about an incident regarding an eel on the Farm. This issue was not relevant to the complaint. On redirect the Respondent Representative asked Mr. Mc Govern did he ever discuss temporary lay off with the Complainant and he replied no and that he only discussed possible future  job opportunities with the Marine Institute.

Mr. Nikki Loubser, Director of the Respondent with responsibility for Finance and Administration, gave evidence he asked the Complainant to sign the contract on two occasions but it was not signed. He advised he found out the employment had ended when Mr. Mc Govern sent an email on June 10th . Mr. Loubser was asked did the company contemplate a lay off for the Complainant and the advised this was never considered.

I advised the Parties at the Hearing that even though both parties gave evidence on affirmation it was significantly at odds with each other and I would have to decide this issue of entitlement to notice on which evidence I prefer. Having considered the matter I prefer the evidence of the Respondent and find the Complainant resigned on June 9th and was not entitled to notice and that claim is not well founded.

CA-00067612-004 Payment of Wages

I am satisfied from the submissions of the parties that the Respondent was entitled to deduct 230 Euros from the Complainants final pay for holidays taken above those earned (2.5 days). This Complaint is not well founded.

I find that the complaint under the Terms of Employment (Information) Act 1973 was withdrawn in advance of the second Hearing and is not well founded. CA-00067612-002

I find the complaint under the Payment of Wages Act 1991 is well founded and award the Complainant 1442.79  Euros to be paid within 30 days of todays date.  CA-00067612-001

I find that the complaint under the Minimum Norice and Terms of Employment Act 1973 is not well founded. CA-00067612-003.

I find that the complaint under the payment of Wages Act 1991 is not well founded (CA-00067612-004)

Payment of Wages