ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000193

Complaints for Resolution:

Date of Adjudication Hearing: 08/01/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 complaints.

Complainant’s Submission and Presentation:

The Complainant commenced work as a Car Wash Attendant on a 48 hr week on 19 June 2015. He is a Polish national. He concluded his employment amidst a disagreement with his employer on 26 July 2015. In the course of his work, he assisted in valeting cars.

He told the Adjudication hearing, with the support of an Interpreter that he was accused of under charging a customer at the car valeting section of the business and his Employer Mr D insisted that the business be compensated for the loss of €348.24 income from his wages. The complainant recalled that he was pressured to accept the deduction in wages or lose his job.

In the last week of his employment, his hours were cut and he was compelled to take three days unpaid off that week causing him a shortfall of €246.52 in earnings. In addition, the complainant contends that he is owed annual leave and public holiday on cessation of employment on 26 July 2016.

The Complainant was on emergency tax and he disputes that he was paid his proper wages throughout his 5 week employment record as Mr D assured him that payment was to follow but this did not happen. There was a delay in receiving pay slips.

The Complainant is seeking (a)   Annual leave on 240 hrs worked

                                                   (b) Public Holiday of 8 hrs

                                                     (c) 28.5 hrs unpaid worked 21-26 July 2015

                                                       (d) €348.24 deducted from wages 7-12 July 2015

The Complainant submitted a type written note from Mr D indicating that €470.47 was paid into the complainant’s bank account on 31 July 2015. This was set out as

Week 29   348.24

Week 31   200.23

Deductions   Car Wash takings and Valet undercharge      

   Minus     78.00

            = 470.47 (Balance paid)

Pro forma P45 attached. These documents were received on August 4, 2015

At the hearing, the Complainant denied receiving any of this payment from the respondent. In the absence of the respondent, I asked the complainant to submit a redacted copy of his bank account statement to depict the deposits of July 31 2015, if any. He agreed to do this .

Respondent’s Submission and Presentation:

Nobody appeared from the Respondent.

Decision:

Section 41(4) 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 the Act , Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act ,1991.

I am satisfied that the employer was on notice in this case and I afforded a reasonable waiting time prior to commencement of the hearing in the event that a mishap or delay had occurred. I enquired into the complaint and found that the complainant was not issued with a contract of employment. Therefore, it was difficult to assess annual leave or public holiday records for which the respondent has the responsibility of recording.

ANNUAL LEAVE (Section 23 of the Act)

Where an employee, ceases to be employed, Section 23(1) of the Organisation of Working Time Act 1997 provides that:

The employee shall, as compensation for the loss of that annual leave,

Be paid by his or her employer an amount equal to the pay, calculated

At the normal weekly rate or, as the case may be, at a rate

Proportionate to the normal weekly rate, that he or she would have

Received had he or she been granted that annual leave.

I have examined both pay slips produced by the complainant; I did not find any reference to annual leave and in the absence of argument from the respondent, whose obligation it is to record annual leave, I find that the complainant is entitled to receive:

240hrs worked at 8% calculation under S.19 of the Act. This amounts to  

PUBLIC HOLIDAY (section 23 of the Act)

23 (2) Where—

(a) An employee ceases to be employed during the week ending

On the day before a public holiday, and

(b) The employee has worked for his or her employer during the

4 weeks proceeding that week,

The employee shall, as compensation for the loss of his or her entitlements

Under section 21 in respect of the said public holiday, be paid

By his or her employer an amount equal to an additional day’s pay

Calculated at the appropriate daily rate.

The Complainant is therefore entitled to the payment in lieu of the August bank holiday

This amounts to 8 hrs @ €8.65=     € 69.20

PAYMENT OF WAGES ACT (Section 5 and Section 6)

Section 5 (2) An Employer shall not make a deduction from the wages of an employee in respect of -----

(a)   Any act or omission of the employee or

(b)   Any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment ,

Unless

(1)   The deduction is required or authorised to be made by virtue of a term of the contract of employment.

In this case, the complainant did not have a contract, nor did he receive a receipt for the monies deducted (S3 (b) of the Act). Based on the payslips, there was a variance in pay received in week 29 and week 31, part of the reason for this seems to have been the reimbursement of emergency tax in week 29. For his five weeks work, the pro forma P45 indicated a total of €1963.56 which equates with 5 weeks @392.71. The complainant told the hearing that he was earning €400- €415 gross per week on €8.65 ph.

The Complainant agreed to submit written confirmation to the WRC via a Bank statement that the monies as stated on the Employer document had not actually been received by him. I have not heard from the complainant since the date of the hearing. I am satisfied that he understood the request made of him as the Interpreter assisted in translation.

   The document provided for the €348.24 owed and a nett figure of €200 which corresponds with the claim outlined. I must therefore, assume that in the absence of a contrary message, that these monies were actually received by the Complainant. I cannot however, accept the legitimacy of the Deductions of €78 from the complainant’s wages as it contravenes Section 5 of the Act.

I find therefore , that the claims as stated have been satisfied with the exception of €78 .I order the respondent to pay the complainant €78 as provided for in S.6 (2)(a) of the Payment of Wages Act , 1991.

Decision:

1)      I order the respondent to pay the complainant the sum of €235.28 for breaches of the Organisation of Working Time Act, 1997 as stated.

2) I order the employer to pay the employee the sum of €78 under S.6 (2) (a) of the Payment of Wages Act 1991.

Patsy Doyle     Adjudicator

Dated:   8^th April 2016