Complainant

Respondent

Parties

Gordon  Prior

Palomar Ltd t/a McSwiggans

Representatives

  Self-represented

Joe Bolger ESA Consultants

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-00040612-001

24/10/2020

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

CA-00040612-002

24/10/2020

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

CA-00040612-003

24/10/2020

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

CA-00040612-004

24/10/2020

The complainant was employed as the Head Chef at the respondent’s restaurant.  He commenced employment on 01 September 1987.  His employment terminated by way of redundancy on 15 August 2020.  The complainant claims that the respondent made an unlawful deduction from his wages in January 2020.  The complainant further claims that he was not paid the statutory notice pay of eight weeks when his employment was terminated.  The complainant submitted his complaints to the WRC on 24 October 2020.

The respondent contends that the claim submitted under the Payment of Wages Act is out of time and should be struck out.  The respondent asserts that the payment was a bonus payment which ceased due to lack of performance.  The respondent contends that the complainant was being paid pandemic unemployment payments between March and August 2020.  As that period included his notice period those payments constituted his notice pay.

The complainant was employed as Head Chef at the respondent’s restaurant.  He had commenced employment in 1987.  The business had been sold to the respondent in 2018.  The complainant transferred to the respondent company under the Transfer for Undertakings Regulations.

CA-00040612-001

The complainant claims the respondent made unlawful deductions from his wages on 29 January 2020 in the amount of €240.  The complainant states that he had received this payment each week for more than 20 years. This payment was part of normal salary and was never part of a performance related payment. He states that he was not given notice of the removal of this weekly payment. He raised this issue with the respondent, but they refused to reinstate the weekly payment.

CA-00040612-002

This complaint was withdrawn at the hearing as it was a duplicate of complaint CA-00040612-001.

CA-00040612-003

The complainant claims that he was not paid the notice pay to which he was entitled by contract and statute when his employment was terminated due to redundancy.  The complainant states that he signed a statutory redundancy form in June 2020.  His employment was terminated on 15 August 2020 without payment of his notice pay.  The complainant had been laid off on 15 March 2020 due to the Covid-19 health and safety restrictions.  The complainant claims he is entitled to be paid for a notice period of 8 weeks at his normal rate of pay.

CA-00040612-004

This complaint was withdrawn at hearing as it relates to the same claim as that contained in CA-00040612-003 and was submitted in error.

The complainant in his evidence stated that he was not aware of the 6-month time limit for the submission of complaints to the WRC concerning pay issues.  He had been paid €240 as part of his weekly wages for twenty years.  He had not been told that the payment was to be stopped.  He contacted one of the Directors of the respondent to query why he had not been paid.  The respondent company regarded this payment as a performance related payment.  The complainant disputed that claim.  The issue was ongoing when the restaurant was closed because of the pandemic health and safety restrictions.  The staff were given notice of redundancy in June 2020.

The complainant stated that he was employed as Head Chef. He was laid off on 15 March 2020 and was receiving the pandemic unemployment payment from that time until the termination of his employment on 15 August 2020.  The complainant stated that he accepted the redundancy as the position of Head Chef was made redundant and the only offer of work was as a chef at less than half his salary.  His claim is that his position was made redundant, but he was not paid for the notice period of 8 weeks to which he was entitled.

The respondent raised preliminary issues relating to duplication of complaints and complaints being out of time.

CA-00040612-001

It is the respondent’s position that this complaint was submitted to the WRC outside the 6-month time limit provided for in the legislation and should be struck out.  The first payment was stopped on 29 January 2020.  The complainant was aware of this but did not submit a complaint to the WRC until 24 October 2020, therefore the complaint is out of time.

The complainant claims that the respondent made an unlawful deduction from his wages.  The respondent rejects this claim.

The respondent company bought the restaurant in November 2018, and all staff were transferred in accordance with the TUPE Regulations.  The complainant was issued with a new contract on 15 November 2019.  The contract acknowledged the change of ownership, but all other terms and condition remained the same. 

In December 2019, an inspection of the premises was conducted.  There were serious health and safety issued identified regarding the management of the kitchen area.  The complainant was informed that arising from the findings of the inspection and his failure to meet targets he would not be receiving his bonus payment on the grounds of underperformance.  The bonus payment was stopped on 29 January 2020.

CA-00040612-003

This complaint is submitted pursuant to Section 12 of the Minimum Notice and Terms of Employment Act, 1973. 

In March 2020 due to the Covid-19 pandemic health and safety restrictions were introduced and the restaurant was in lockdown from 15 March.  The staff were laid off and placed on the pandemic unemployment payment scheme.  The business had to assess how it could operate successfully in the future.  On 15 June 2020, the staff were put on notice of redundancies.

The position of Head Chef was declared redundant.  The complainant refused the offer of alternative employment and accepted the redundancy.

It is the respondent’s position that by letter dated 19 July 2020 the complainant was informed that the Covid payments he was receiving since March 2020 would continue to be paid to him and would constitute his notice pay.  The respondent contends that because of the unique circumstances created by the pandemic the complainant’s contract was suspended and providing zero hours of work.  Furthermore, the complainant had been paid the pandemic unemployment payment since he was laid off, based on zero hours, and this continued until the date of termination.

In support of its position the respondent refers to the Second Schedule of the Act:

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

The respondent contends that the complainant refused a reasonable offer to work and therefore the respondent is not liable to pay the notice payment.  Further, the respondent asserts that the complainant was not available to work his notice period as he was engaged in preparing to open his own restaurant.

The respondent requests that this complaint be struck out.

CA-00040612-004

It is the respondent’s position that complaint relates to monies the complainant believes are due in relation to his redundancy.  As this complaint was submitted under Section 6 of the Payment of Wages Act, 1991 the respondent contends that it is being pursued under the wrong legislation and should be struck out.

Preliminary Issue

CA-00040612-001

This complaint pursuant to Section 6 of the Payment of Wages Act, 1991 was received by the Workplace Relations Commission on 24 October 2020.  The complaint stated on the complaint form that his employer had made an unlawful deduction from his wages on 29 January 2020.

Section 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 complaint was received three months outside the normal time limit as specified in section 41(6) of the Workplace Relation Act, 2015.  The only reason provided by the complainant for the late submission was that he was not aware of the time limit in the legislation. 

It is well established that lack of knowledge of the legislation does not provide a reason to stop time running.  The Labour Court in Ervia v Healy PWD2020 stated “The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court in Minister for Finance v CPSU and Ors [2007] 18 E.L.R. 36.”. 

I am satisfied the only reason the complainant did not submit a complaint within time was his lack of knowledge of the legislation.  That is not sufficient reason to prevent time running.  Even if the deductions continued up to the time he was laid off in March, this complaint was submitted out of time.  I decide I do not have jurisdiction to adjudicate on this complaint as it was submitted out of time.

CA-00040612-003

Complaint submitted pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The complainant was not paid notice pay by the respondent.  The complainant claims that he is entitled to be paid 8 weeks’ notice pay.

Legislation

12. (1) 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 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

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.

5.— (1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer

SECOND SCHEDULE

RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE.

1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours

2.(a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

 (ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee’s pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subparagraph (a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

Employments for which there are no normal working hours

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

 4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

The respondent contends that it is not liable to pay the normal notice payment for two reasons.  First, the respondent contends that the complainant worked zero hours during the notice period because of the contract of employment was suspended due to the unique position arising from the Covid pandemic. The respondent refers to Section 3 of the Second Schedule of the Act.  The Second Schedule deals with the rights of the employee during the period of notice.

Second, the respondent contends that the complainant refused an offer to work during the notice period. The respondent refers to Section 4 of the Second Schedule of the Act.

Due to the Covid pandemic restrictions, the restaurant closed, and the employees were laid off on 15 March 2020.  The employees received the pandemic unemployment payment during their period of lay off.  The complainant’s employment was terminated on 15 August 2020 by reason of redundancy.  The complainant received his statutory redundancy payment but was not paid notice pay by the respondent.  The complainant was employed as Head Chef in the restaurant.  He had worked there for almost thirty-three years.  His gross pay per week was €1982. 

The issues raised by the respondent relate to the fact the complainant was laid off in the period before his employment was terminated for reasons of redundancy.  Lay-off is defined in the Act as having the meaning assigned to it by Section 11 of the Redundancy Payments Act 1967.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay off.

At the time the complainant was laid off the respondent, like all other employers in the restaurant business, believed the required closure would be temporary.  As the pandemic progressed it became clear that the restrictions would continue for longer than initially expected.  The respondent in a letter dated 16 June 2020 to the complainant stated that as a result of the pandemic they had to examine their operations in each department, and they were implementing significant changes in their management structure.  The complainant was informed that the respondent was making the position of Head Chef redundant and would transfer a significant number of his responsibilities to other departments.  The circumstances had therefore changed and the lay-off was no longer expected to be temporary.  The complainant was on notice of redundancy from that date.

In Irish Leathers Ltd v Minister for Labour [1986] I.R. 177the High Court considered the position of an employee on lay-off being given notice of dismissal due to redundancy.  Barrington J held “Once notice of dismissal was served it appears to me that the employee was no longer “laid off” but was an employee under notice of dismissal.  Put another way, the contract of employment, the operation of which had been suspended, had been reinstated for the purpose of terminating it.  Once this happened it appears to me that the rights of the parties were governed by the provisions of the Minimum Notice and Terms of Employment Act, 1973.”  Following from that decision the complainant’s contract of employment was suspended from 15 March to 16 June 2020 by reason of lay-off and was reinstated by the letter declaring the position of Head Chef redundant.

The respondent then contends that it is not liable to pay notice pay because the complainant refused alternative employment.  The Second Schedule of the Act deals with the rights of an employee during a period of notice.  Paragraph 4 provides:

4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

The complainant was not offered work at the rate he had been earning prior to being laid off.  He was offered a “lessor” role as a senior chef on a salary of €41,500 pa.  The complainant’s earnings in the thirteen weeks before he was laid off were €1,982 per week.  Therefore, the work offered would not have provided remuneration at the rate mentioned in paragraph 3, that is a sum not less than the average weekly earnings in the thirteen weeks before the contract was suspended by lay off. I am satisfied that the respondent did not offer the complainant work that would have allowed him to earn a sum not less than his average weekly earnings in the thirteen weeks before his contract was suspended by lay off.  Therefore, the complainant’s rejection of the lessor role does not provide a valid reason for the respondent to refuse to pay the correct notice pay.

I am satisfied that the complainant was given notice of redundancy on 16 June 2020 and at that date his contract was reinstated for the purpose of terminating it by reason of redundancy, having been suspended since 15 March 2020.  I decide that the thirteen weeks prior to the giving of notice referred to in paragraph 3 of the Second Schedule equate to the thirteen weeks prior to the period of lay off.  The complainant is therefore entitled to be paid eight weeks’ notice pay at the gross weekly rate of €1,982.

CA-00040612-001

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

I am satisfied this complaint was submitted out of time.  I decide I do not have jurisdiction to adjudicate on this complaint as the complainant submitted it out of time.

CA-00040612-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant withdrew this complaint as it was a duplicate of complaint CA-00040612-001 and had been submitted in error.

CA-00040612-003

Complaint submitted pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973

I find the respondent has contravened the provisions of Section 5 (Second Schedule of the Act) by failing to pay the complainant his statutory notice payment.   I decide the complaint is well founded.  The complainant is entitled to be paid eight weeks’ notice pay at the gross weekly rate of €1,982.  I direct the respondent to pay to the complainant the sum of €15,856 gross (being the equivalent of eight weeks’ pay) subject to all lawful deductions, in compensation for the loss sustained by reason of the contravention of the Act.

CA-00040612-004

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant withdrew this complaint as it was the same complaint as submitted in complaint CA-00040612-003.

Payment of Wages

Lay-off

Notice

Redundancy

Time Limit