ADJUDICATION OFFICER DECISION

 Adjudication Reference:  ADJ-00058015

Parties:

Complaints:

Date of Adjudication Hearing:  12/03/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 6 of the Payment of Wages Act 1991,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant contends that he was unfairly dismissed, by way of unfair selection for redundancy.  He further contends that the Respondent acted in breach of the Payment of Wages Act 1991 by unlawfully withholding payment for overtime worked.

Summary of Complainant’s Case:

The Complainant included a detailed submission in the narrative of his complaint, summarised as follows:

He made two complaints under the Payment of Wages Act 1991 concerning the non payment of wages for overtime he worked from 19 August 2024 to 21 November 2024, in the total amount of €8,940.89.

He was employed by the Respondent from 17 January 2022 until he was made redundant on 19 November 2024.  His position was Finance Executive.  He contends that he was singled out for adverse treatment in relation to not being paid for overtime and for being made redundant which was not a genuine redundancy.

He contends that the refusal to pay him for the overtime worked was in contravention of his written contract of employment which stated that he may be required to work overtime which would be paid or compensated for in time off in lieu at the discretion of the Employer.  The rates outlined in his contract were:

“Saturday -1.5 times for the first 4 hours, then 2 times salary thereafter

Sunday – 2 times salary”.

It is contended that the Respondent’s Managing Director solely targeted the Complainant for non-payment for overtime worked for the last 3 months of his employment. He had worked extra hours and had claimed for and been paid for them since the beginning of his employment until August 2024.    It is contended that a recording system showed the Complainant entering and exiting the building and at late hours and the work was accounted for and therefore the Respondent breached the Complainant’s rights by failing to pay the wages for the work carried out.         No other employee received the same treatment.   They worked overtime and were paid accordingly.  Payment for the Complainant was never an issue until on 17 September 2024, the PA to the MD, Mrs M informed him that the MD had instructed her and Payroll that the Complainant was not to be paid for overtime.  When he was told this, he advised Mrs M that he would take 5 weeks annual leave as time in lieu.  Shortly after this, he was given a letter on 26 September 2024, advising him that his position was at risk of redundancy.  In a clear breach of the Complainant’s employment rights, in a phone call from the Managing Director on 29 November 2024, the Complainant was made redundant without any consultation process.

The Complainant gave sworn evidence attesting to the above.  He also stated that he had been ill and had not been in a position to seek alternative employment.  He also stated that he had not completed his financial qualifications when he had 3 small children and was unlikely to obtain work now, given his age.

An application for extension of time was made by Counsel for the Complainant on the basis that the Complainant was not given a written decision in relation to non-payment of overtime,  he continued to work as normal in carrying out his tasks and he was given neither payment nor time in lieu for the work done.

Sworn evidence was given by Mr R an ex-colleague of the Complainant.  He stated that he had worked in the Stores, worked overtime and was paid as per the terms of the contract, i.e. time and a half and double time on Sundays.  He said he just “did the overtime, put in the hours, and was paid for them”.  He never had to get pre-approval.

Sworn evidence was given by Ms LM who said that she was the Company Secretary at the time of the Complainant’s employment and also had a Data Protection role in the Company.  She said that when Mrs M told her that the Managing Director was not going to approve the Complainant’s overtime claim, she told Mrs M that the variance in the employment contract would have to be put in writing. She also said that an advertisement was issued for a Finance/Admin role and a new person hired.

Summary of Respondent’s Case:

A written submission was made and sworn evidence was given by the PA to the Managing Director (Mrs M) summarised as follows:

The Complainant was employed by the Respondent from the 17th January 2022 and was given notice that his position was being made redundant on the 29th November 2024. He was offered one month’s salary in lieu of notice which he accepted. As it is his position in the company that has been made redundant, the Complainant has not been replaced. The Managing Director asked the Complainant to do a handover of any work in progress by 5pm that evening. This was not carried out and to this date no handover of any kind has been performed and the Complainant left a considerable amount of work to be completed. Mrs. M has since taken on the tasks that needed to be done and they are now completed and up to date. It must be noted that Mr. Mannion entered the building illegally on the morning of the 30th November after failing to do a handover of  Company property, including keys. He was paid one month’s salary in December 2024 applicable to his notice period. On the 27th of December Mr. Mannion received a payment of 6928.44 Euros. This was made up of a redundancy payment of 4140.00 Euros and 3216.44 Euros holiday pay. An amount of 428.00 Euros was deducted from his payment being the BIK that he owed the company for use of a company vehicle for 6 months.   Calculations were submitted  for both his redundancy pay and his holiday pay as per the payroll department. Also the bank transfer details for lodgement to his account. The payroll department were instructed to forward his payslips to his home address. They stated that they could not be emailed due to GDPR regulations. If Mr. Mannion has an issue with this he should contact them directly. Mr. Mannion had the use of a company vehicle for a period of six months. He was not required to make home visits to patients and only used the vehicle to travel to and from work. Mr. Mannion was also in possession of his own transport. Mr. Mannion was asked to return the vehicle as it was needed for a staff member who was required to visit patients and it was brought back in a written off condition which cost 1700.00 Euros to restore. It must be noted here that under the section marked Pay Details, Mr. Mannion states that his hours of work were 69 hours per week. Mr. Mannion was contracted to work 37.50 hours per week as is every other employee of the company. The fact that other employees had either left the company or been let go in previous months did not infringe on Mr. Mannion’s work area as they were employed in different areas of the company and Mr. Mannion’s work load was unchanged. Mr. Mannion’s statement that other members of the finance department relied heavily on him is untrue. Mrs M’s work involved being PA to the Managing Director, Bank reconciliation, producing financial reports, cash flow forecasts, none of which were areas that Mr. Mannion had any involvement with. Staff members would normally work 5 to 10 hours overtime per month, particularly those required to be on call at the weekends. Mrs M flagged to Mr. Mannion on several occasions that his overtime had to be approved in advance and that Managing Director Mr. D had requested that he should not work any further overtime without approval. Mr. Mannion was reportedly working excessive overtime hours, not leaving the building until 10pm or 11pm, not seeking approval to work the overtime in advance and not detailing the tasks he intended to perform. In addition to this he did not have permission to be on the premises at this time of night. He was asked not to work any more overtime without approval on the 16th August 2024 but continued to do so without approval. He submitted an overtime sheet to the accounts department after he was told his position was being made redundant. This had no breakdown of the hours he worked, dates that he performed the overtime and no note of the tasks he carried out. A copy of the submission was submitted. On the Monday after Mr. Mannion’s position had been made redundant and his illegal entry on to company premises, Mrs M received an overtime sheet with different tasks detailed on it. All the tasks were ones that he should have performed during his normal 7.5 hour day. There was no satisfactory explanation of why he had to work the overtime and no details of approval from any senior person. Regarding the collection of company equipment the Company tried to contact Mr. Mannion on two occasions, the first being by phone on the 20th March at 12 noon (for which we have the telephone records) and secondly by post requesting a suitable time and date to make the collection.  A response was received to say that he had had no contact from Medicare either by message or telephone and that we have to inform him when we want to collect the equipment. This will be addressed.

Findings and Conclusions:

CA-00070439-002            Payment of Wages Act 1991

Section 5 of the Act provides:

Section 5 (6) provides:

In this case, I have investigated whether the withholding of payment for overtime to the Complainant constituted a deduction of wages “properly payable”.  In the first instance, I examine the time limits as contained in the Workplace Relations Act 2015 (as amended).

The complaint was received on 31 March 2025.  The claim is that the Respondent failed to pay the wages of the Complainant in respect of overtime worked from 19 August 2024 to 17 September 2024. 

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

“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.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

In this case, the cognisable period is from 30 September 2024 and the complaint is out of time unless saved by Section 41 (8) of the Act in which case, the cognisable period is extended to 31 March 2024 which would encompass the relevant period when payment for overtime ceased.

The evidence given was that the Complainant was verbally told in either August or September 2024 – there were different accounts of the two main witnesses – and the Complainant  continued to work overtime without approval.  I note that there was no written instruction given to the Complainant.   The Complainant continued to work overtime and claimed the payment after he was made redundant in November 2024.   The amount claimed for this part of the complaint is €5,544.76. In the absence of a written instruction, or an approval form, I find that the Complainant carried out his work during the hours claimed and I am willing to extend the time, due to the absence of a written instruction to him that he should cease working hours in excess of his 37.5 hour week.  I find that the withholding of payment constituted an unlawful deduction and I find the complaint to be well founded.  I require the Respondent to pay to the Complainant the sum of €5,544.76 less all lawful statutory deductions.  

CA-00070439-003            Payment of Wages Act 1991

Section 5 of the Act provides:

Section 5 (6) provides:

In this case, I have investigated whether the withholding of payment for overtime to the Complainant constituted a deduction of wages “properly payable”.  In the first instance, I examine the time limits as contained in the Workplace Relations Act 2015 (as amended).

This complaint was received on 31 March 2025.  The claim is that the Respondent failed to pay the wages of the Complainant in respect of overtime worked from 19 September 2024 to 29 November 2024. 

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

“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.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

In this case, the cognisable period is from 30 September 2024 and that portion of the time claim from 19 September 2024 is out of time unless saved by Section 41 (8) of the Act in which case, the cognisable period is extended to 31 March 2024 which would encompass the relevant period when payment for overtime ceased.

The evidence given was that the Complainant was verbally told in either August or September 2024 – there were different accounts of the two main witnesses – and the Complainant  continued to work overtime without approval.  I note that there was no written instruction given to the Complainant.   The Complainant continued to work overtime and claimed the payment after he was made redundant in November 2024.   The amount claimed for this part of the complaint is €3,396.13. In the absence of a written instruction, or an approval form, I find that the Complainant carried out his work during the hours claimed and I am willing to extend the time, due to the absence of a written instruction to him that he should cease working hours in excess of his 37.5 hour week.  I find that the withholding of payment constituted an unlawful deduction and I find the complaint to be well founded.  I require the Respondent to pay to the Complainant the sum of €3,396.13 less all lawful statutory deductions.  

CA-00070439-004            Unfair Dismissals Act 1977

The issue for decision in the present case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. The fact of dismissal is not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason.

In the circumstances, in order to satisfy the burden of proof, it is therefore, a matter for the Respondent to establish (1) that a redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation in terms of the selection process for the redundancy.

Section 7(2) of the Redundancy Payments Acts provides:

“(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..

In terms of deciding whether or not the Complainant was unfairly selected for redundancy, I am obliged to take cognisance of the provisions of the legislation. The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states that:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

I have not been presented with any evidence to suggest that there was either any trade union agreement or any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. I also find that the selection of the Complainant for redundancy did not result wholly or mainly from any of the matters specified in subsection (2) of Section 6 of the Act. In the circumstances, I find that the Respondent did not act contrary to the provisions of Section 6(3).

However, notwithstanding the foregoing, in considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6 (7) of the Act which provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so:

(a) to the reasonableness or otherwise of the conduct (whether by act or mission) of the employer in relation to the dismissal”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy.  In this regard, I note that in the case of Gillian Free v Oxigen Environmental UD 206/2011, the Employment Appeals Tribunal held that:

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”

In this instant case, having regard to the totality of the evidence adduced, I find that the Respondent did not act fairly or reasonably and did not apply fair procedures in terms of the manner in which the Complainant was selected for redundancy. In coming to this conclusion, I note there was no procedure or proper consultation process and the Complainant’s position was singled out for redundancy.

I find the complaint to be well founded.

In relation to redress, I find that re-instatement or re-engagement are not appropriate remedies in the circumstances where the employment relationship has clearly broken down.  This was influenced no doubt by the huge overtime bill the Complainant worked up since the beginning of his employment and I note the Respondent’s clear unhappiness with this aspect of the matter. 

Section 7 (2) of the Act addresses the determination of compensation payable having regard to the extent to which financial loss was attributable any act, omission or conduct by or on behalf of the employer and the extent to which financial loss was attributable any act, omission or conduct by or on behalf of the employee and the measures or failure by the employee to mitigate his losses.  In this case, I note failures on both parts – in the case of the employer failure to adopt a fair procedure, in the case of the employee, failure to seek alternative employment.  In the circumstances, I award him the sum of €12,000 compensation for unfair dismissal which I consider to be equitable in the circumstances of the case.

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.

CA-00070439-002            Payment of Wages Act 1991

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaints under that Act.

Based on the findings and reasons above, I have decided that the complaint is well founded.  I require the Respondent to pay to the Complainant the sum of €5,544.76 less all lawful statutory deductions.  

CA-00070439-003            Payment of Wages Act 1991

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaints under that Act.

Based on the findings and reasons above, I have decided that the complaint is well founded.  I require the Respondent to pay to the Complainant the sum of €3,396.13 less all lawful statutory deductions.  

CA-00070439-004            Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the findings and reasons above, I have decided that the complaint is well founded.

I award the Complainant the sum of €12,000 compensation for unfair dismissal which I consider to be equitable in the circumstances of the case.

Dated:   29th April 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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