Complainant

Respondent

Parties

 Eileen Choi

Angry Creative Ab

Representatives

  Self-Represented

 Amy Slade, COO.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00072753-001

24/06/2025

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

CA-00072775-001

25/06/2025

The Complainant commenced working with the Respondent on 1 February 2022. From that date until 31 October 2022, she was engaged under a contractor arrangement in Ireland associated with the Respondent’s UK business. From 1 November 2022, she was engaged as an employee of the Respondent in Ireland in socially insurable employment, as director with managerial responsibilities, where she paid PRSI. Her employment terminated by reason of redundancy on 30 April 2025. The Complainant’s salary was €100,000 a year.

At the adjudication hearing, the Complainant confirmed that she was pursuing two claims:

A complaint under the Redundancy Payments Act 1967, alleging a shortfall in her statutory redundancy payment on the basis that her reckonable service should have been calculated from 1 February 2022 rather than 1 November 2022; and a complaint under the Payment of Wages Act 1991 in respect of 15.8 days accrued but alleged unpaid annual leave on termination.

CA-00072753-001, as set out in the Complaint Form, appeared on its face to suggest a fully pleaded complaint under the Payment of Wages Act 1991. However, the Complainant gave evidence that this box had been ticked inadvertently, rather than the intended complaint under the Redundancy Payments Act 1967. She believed she had subsequently corrected this error with the Workplace Relations Commission.

It is well established that the inadvertent ticking of a complaint box does not of itself give rise to legal liability, provided the accompanying narrative clearly reflects the true intention of the Complainant. In the present case, the narrative of the complaint addressed redundancy exclusively. Moreover, the Respondent’s representative confirmed an understanding that the claim being advanced was one grounded in redundancy. Accordingly, I am satisfied that no prejudice arose for the Respondent, and I have amended the decision template to accurately reflect the substance of the complaint.

CA-72753-001- Redundancy Payments Act 1967:

The Complainant had received a statutory redundancy payment for the period of 1 November 2022 to 30 April 2025. The Complainant submitted that her redundancy entitlement should have been calculated from 1 February 2022, as she worked continuously for the Respondent from that date and carried out the same duties before and after November 2022. She stated that the Respondent’s decision to calculate redundancy from 1 November 2022 resulted in a shortfall in her statutory redundancy payment.

The Complainant accepted that during the period from February to October 2022 she was engaged under a UK-based contractor agreement, though based in Ireland, but that Irish PRSI was not paid during that period. She further accepted that her status changed to that of employee on 1 November 2022.

CA-00072775-001 Payment of Wages Act 1991:

The Complainant submitted that, on termination, she had 15.8 days of accrued but untaken annual leave. She stated that she was informed this leave would be paid out with her final salary. She exhibited her termination letter to this effect.  The Complainant subsequently discovered that the Respondent had retrospectively treated this accrued leave as “paid time off” during her notice period and had not paid her for it.

She submitted that she never agreed to any retrospective deduction or set from annual leave against paid notice, and that no such agreement was communicated to her.

CA-72753-001- Redundancy Payments Act 1967:

The Respondent submitted that the Complainant was a contractor from 1 February 2022 until 31 October 2022, engaged through the Respondent’s UK business, and that this period did not constitute socially insurable employment in Ireland. Irish payroll and PRSI commenced only on 1 November 2022 when the Complainant became an employee.

The Respondent submitted that statutory redundancy was correctly calculated based solely on the Complainant’s period of insurable employment from 1 November 2022 to 30 April 2025, in accordance with the Redundancy Payments Acts.

CA-00072775-001 Payment of Wages Act 1991:

The Respondent submitted that the Complainant had sought to cease working before the end of her notice period while remaining paid until the termination date, and that this arrangement was agreed. The Respondent stated that it considered the accrued annual leave to have been taken during this paid period.

The Respondent accepted that it could not produce written documentation evidencing an agreement by the Complainant to retrospectively designate accrued annual leave as taken, or to permit deductions or non-payment in respect of that leave.

CA-72753-001- Redundancy Payments Act 1967:

Section 4 (1) of the Redundancy Payments Act 1967 describes the classes of persons to which this Act applies, in its relevant part…

…(1)(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005…

It is clear the entitlement to redundancy payment arises only in respect of reckonable service, namely service in insurable employment.

The evidence in this case is that during the period February to October 2022, the Complainant was engaged under a contractor arrangement linked to a UK business, though working in Ireland, but no Irish PRSI contributions were paid during that period. The Complainant entered socially insurable employment in Ireland on 1 November 2022. While the Complainant performed senior duties throughout her engagement and held the title of Director, the statutory test for redundancy entitlement is not the seniority of the role but whether the service relied upon was insurable employment within the meaning of the Acts.

Based on the evidence, I am not satisfied that the period from 1 February 2022 to 31 October 2022 constituted socially insurable employment in Ireland. That period is therefore not reckonable for the purposes of calculating statutory redundancy. Accordingly, I find that the Respondent correctly calculated statutory redundancy based on the period commencing 1 November 2022, and I do not allow the Complainant’s appeal.

CA-00072775-001 Payment of Wages Act 1991:

Section 1 of the Payment of Wages Act 1991 (“the 1991 Act”) defines wages as: -

“wages”, in relation to an employee, means 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind [,

(vi) any payment by way of tips and gratuities.

Section 6(1) of the 1991 Act states:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages [or tips or gratuities] of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tips or gratuities as the case may bez (after the making of any lawful deductions therefrom) that—

in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment.

The Complainant claims non-payment of 15.8 days accrued annual leave on termination. The Complainant submits that these days constituted wages properly payable under the 1991 Act. The Respondent accepted that it could not produce any written agreement or documentation showing that the Complainant agreed to retrospective designation of accrued annual leave as taken. Furthermore, there was no evidence that the Complainant consented to deductions or non-payment of holiday pay. The Respondent’s position amounts, in effect, to a unilateral reclassification of paid notice time as annual leave. I preferred the Complainant’s evidence on this, and I am satisfied that there was no agreement on retrospective deduction on holidays.  

I find that the Respondent has failed to discharge the burden of proof required under the Payment of Wages Act 1991. The non-payment of accrued annual leave therefore constitutes an unlawful deduction contrary to section 5 of the 1991 Act in that the payment constituted wages “properly payable”. I find that the complaint was well founded.

Financial Calculation:

Section 6(1)(a) of the 1991 Act states that it is net amount of the wages due that is payable to a successful complainant. The Complainant’s net monthly salary on the complaint form was €5008.81.

·        Annual net salary: €60,105.72

·        Weekly rate: €60,105.72 divided by 52 = €1,155.88.

·        Daily rate (5-day week) €1,155.88 divided by 5 = €231.18

·        Amount due: 15.8 x €231.18 = €3652.64

CA-72753-001- Redundancy Payments Act 1967:

For the reasons outlined above, I disallow the Complainant’s appeal and find that the statutory redundancy sum was correctly calculated by the Respondent.

CA-00072775-001 Payment of Wages Act 1991:

For the reasons outlined above, I find that the complaint was well founded, and I direct the Respondent to pay the Complainant the net sum of €3652.64.

Redundancy Payments Act 1967, Payment of Wages Act 1991.