Case Number: ADJ-00000101. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000101
Date10 May 2016
PartiesA Worker v An Employer
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000101

Complaint(s)/Dispute(s) for Resolution:

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-00000142-001

08/10/2015

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) 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).

Complainant’s Submission and Presentation:

1:1 The Complainant has been underpaid in respect of her employment in so far as she has not been paid the full salary due to her to the date of cessation.

1:2 The Respondent had adjusted her pay in respect of unpaid leave covered by the period of her minimum notice for which full pay was due.

1:3 Her pay from Jan 2015 had been adjusted to take account of planned unpaid leave scheduled to commence from 6/6/2015.

1:4 As she was placed on notice prior to the date at which her unpaid leave was due to commence, her full pay for the year to cessation should have been restored. The outstanding amount is in the region of €5,077.

1:5 The Complainant was forced to sign the Compromise Agreement on the 27th November 2105 at a time she was experiencing very difficult personal and financial circumstances.

1:6 The Compromise Agreement was drafted on the 21st July 2015 a date which preceded the reneging by the Respondent on the 24th July of a previous commitment to pay the full amounts due.

1:7 The Complainant was made compulsorily redundant with effect from the 17th July 2015. Standard good procedures were not followed during the redundancy process. No evidential basis was provided for the selection decision and a redeployment offer was unsuitable.

Respondent’s Submission and Presentation:

2:1 The Respondent engaged in a consultation process with the Complainant and her Union, IMPACT during the Summer of 2015.

2:2 A Compromise Agreement was issued to the Complainant in July 2015 and return signed in November 2015.

2:3 All monies due were then paid.

2:4 The claim has no standing as the matters were concluded by the signing of the Compromise Agreement.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint of a contravention of Section 5 of the Act.

Issues for Decision:

4:1 This is a Payment of Wages Act 1991 claim only.

4:2 The central issue is the subject of a very comprehensive “full and final settlement” Compromise Agreement between the parties that specifically refers to Payment of Wages Act 1991 claims. Accordingly does an AO have any jurisdiction to hear the claim?

4:3 In relation to the signature of the Complainant to the Agreement above, was this signature given under such duress as to allow it and the Agreement be set aside?

4:4 Was the formulation by the Respondent of the matters for decision and the taking of the decision in keeping with proper procedures and consultations?

4:5 Was the Complainant represented and well informed by a suitable third party?

Legislation involved and requirements of legislation:

Section 6(1) of the Payment of Wages Act, 1991 states

(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 5 as respects a deduction made by an employer from the wages 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 (after the making of any lawful deduction therefrom) that—

(i) 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,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

* emphasis added by AO

Decision:

I find that claim is not well founded in whole or in part.

My reasons are as follows:

6:1 A full and final settlement Compromise Agreement, signed by the Complainant in November 2015, exists between the parties.

In her written evidence the Complainant indicated that she had also in July 2015

Para 2.4 Page 3 -“reluctantly accepted the ex gratia package on offer in an effort to put this very traumatic experience behind me. However I fully expected to be a paid all my statutory legal entitlements including payment for the notice period” Para 2.4

6:2 Even allowing for the very difficult situation the Complainant was in following a family bereavement I could not find evidence to support any contention that the final signing of the agreement in November 2015 was an irrational or uniformed act, taken in the absence of any prior consultation with her and in this case, her Union, IMPACT. The basic draft of the Compromise Agreement had been with her since late July 2015 and in evidence it was clear she had studied it closely.

Accordingly I could not find evidence to legitimately set aside the signature and acceptance by the Complainant of the Agreement of the 26th November 2015.

6:3 In evidence both written from the Complainant and from an IMPACT Official at the Oral hearing it was confirmed that the Voluntary Severance Agreement which under laid the Compromise Agreement was negotiated between the Trade Union IMPACT and the Respondent with the assistance of the Labour Relations Commission.

6:4 However I noted the conclusions from the submission of EAT case M229 UD 121/94 Short v Data Packaging by the Complainant, in relation specifically to signed waiver agreements between parties

Therefore in coming to my decision and noting the EAT reference above I also considered the following additional points given in evidence both written and oral.

6:5 In evidence by the Complainant the methodology of the disputed calculation that...

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