Case Number: ADJ-00028226. Workplace Relations Commission

Docket NumberADJ-00028226
Hearing Date29 January 2021
Date26 July 2021
CourtWorkplace Relations Commission
RespondentA Catering Business
ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028226

Parties:

Complainant

Respondent

Anonymised Parties

A Former Chef

A Catering Business

Representatives

Noel Murphy, IWU

Lisa Conroy, Peninsula

Complaint:

Act

Complaint Reference No.

Date of Receipt

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

CA-00036239-001

19/05/2020

Date of Adjudication Hearing: 29/01/2021

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me via Remote Hearing platform and to present to me any evidence relevant to the complaint.

Background:

On 19 May 2020, the Union on behalf of the Complainant raised a complaint under the Payment of Wages Act, 1991. The Union submitted that the sum of €6,000 awarded to the Complainant via an Industrial Relations Act, 1969 in March 2020 had neither been appealed or discharged by the Respondent in this case.

The case warrants a clear transcription of the submitted complaint:

“I had a Dispute with my Employer which I referred to WRC. My complaint was held on 5 December,2019. The Adjudicator, Ms Patsy Doyle awarded me €6,000 in her decision which was dated 23 March 2020. Neither I or my Employer appealed the award. Through my Trade Union I asked my Employer to pay this money. I have received no response and I now believe that I am lawfully owed this emolument. I am referring the issue for a decision under the Payment of Wages Act”

The Respondent in the case operates a Catering Company and has strongly contested the claim and has submitted that they do not hold liability for an Industrial Relations Act Recommendation and are not bound by it.

Both parties made written and oral submissions and both parties raised very compelling arguments for their member/client.

Summary of Complainant’s Case:

The Union outlined that the Complainant in this case worked as a Chef at the respondent business from 18 August 2018 until his dismissal on 10 July 2019. He worked full time and was in receipt of €380.00 gross per week.

The Complainant had previously lodged a Dispute surrounding his dismissal with the Workplace Relations Commission during 2019. The dispute was heard on 5 December 2019 under the Industrial Relations Act, 1969 and resulted in a recommendation dated 23 March 2020 that €6,000 be awarded in compensation to the complainant.

A concurrent claim for wages and notices under Payment of Wages Act, 1991 was withdrawn on the day. The Respondent had not refused to attend the hearing under the Industrial Relations Act, 1969.

The Recommendation read:

“I have found merit in the Dispute.

Considering the clear absence of fair procedures, in addition to the assurances given that the claimants job was safe, when it is clearly was not, I have identified that Mr A, as Manager was present at fact finding stage, investigation and Disciplinary processes. This was unfair, unreasonable and contrary to fair procedures.

I am satisfied that the claimant suffered extreme disappointment and detriment in the aftermath of his dismissal, which was precipitous. I have found the outcome to have been largely predetermined.

The employment is now over and not redeemable. The claimant has found new work. I believe that compensation is the most suitable remedy in this case and I award the claimant €6,000 compensation for the breach in fair procedures and breakdown in trust between him and his former employer.

I recommend that the Employer in this case implement a guidance document for handling complaints concerning employees placed on a client base, which should be shared by both the client base and the host employer within 4 weeks of this decision “ADJ 23653

On 5 May 2020, in the absence of an appeal by the Employer, the Union sought implementation of the award without response. The matter was subsequently referred for decision to the WRC.

The Union argued that the award of €6,000 amounted to an emolument, which fell for payment once the time allowed for appeal of the March Recommendation had elapsed. It amounted to unpaid wages referable to the complainant’s employment.

The Union clarified that they accepted that there was no means at the Unions disposal to seek enforcement of the award at District Court level and had not attempted to do so. The Union was aware of the limitations of the Industrial Relations Act, 1969.

The Union referred to an earlier ADJ 14451 from January 2019, where the Adjudication Officer in that case had accepted that a €1,000 award, previously made to a driver of a Courier Company, under IR Acts, without appeal, was found to amount to an emolument. This fact that this award went unpaid, was recognised as a contravention of the Payment of Wages Act, 1991.

The Union submitted that the Complainant had presented a Trade Dispute to the WRC as he was ineligible to pursue a claim for Unfair Dismissal under that Act, due to insufficient tenure.

It was open to the Respondent to object to a hearing under the Industrial Relations Act, 1969, but no objection followed. However, the Respondent had absented themselves from the IR Hearing in December 2019.

The Union contended that the €6,000 recommended in the March 2020 decision should be recognised as an emolument owed to the complainant and sought a decision in support of the contention.

The Union was asked to clarify the earlier claim that led to the Recommendation ADJ 23653. The Union confirmed that it was a...

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