ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004648

Complaints for Resolution:  

Date of Adjudication Hearing: 01/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Background: The Complainant attended the hearing and submitted that he was withdrawing all complaints against the respondent with the sole exception of the Complaint under the Payment of Wages Act 1991 .The Case proceeded on CA-00006574-001 alone.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 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 and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation: 

The complainant submitted an outline of his case. He had worked as a Solicitor since February 2007 .He had originally worked for a Partnership which was dissolved in February 2015. The respondent took over the practice in March 2015 and ceased trading in June 2016.

The complaint submitted pay slips for the months of April, May and June 2016.He pointed the Adjudicator to his Bank Statements for this period and submitted that he had been underpaid to the tune of €5,752.64 for this period.

He confirmed that he had spoken with the Solicitor for the Respondent the evening before the hearing and he understood that the respondent had agreed that this sum was indeed owed to him.

He sought an order from the Adjudicator for payment of unpaid salary.

Respondent’s Submission and Presentation:

On the morning of the hearing, A Solicitor for the Respondent contacted the WRC and confirmed by email that the sum of €5,752.64 was owed to the complainant. There was no appearance on or behalf of the Respondent at the hearing. I have incorporated an extract of this email:

There is no issue taken with the amount claimed in respect of pay and Mr. X accepts that the sum of €5,752.64 is due and owing to the complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act 1991 also requires that I make a decision in the case.

Legislation involved and requirements of legislation:

Section 5 of the Payment of Wages Act, 1991 defines the obligations of an employer in respect of paying wages.

 

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) In the case of a deduction, the employee has given his prior consent in writing to it.

(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—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Decision:

CA-00006574-001

I have given careful consideration to the complaint before me and I have examined the well presented case on behalf of the complainant. I have also given consideration to the written statement submitted by the respondent.

The Workplace Relations Commission is an emanation of the State and I would have appreciated an attendance on behalf of the respondent in addressing this claim. No reasons were submitted for his absence. I acknowledge the statement from the Solicitor on behalf of the respondent that €5,752.64 is owed to the complainant, however this statement was silent on a confirmation of an intention to pay the complainant within a defined period.

Therefore, In accordance with Section 6 of the Act, I find that the respondent is in breach of Section 5 of the Act and I order the Respondent to pay the sum of €5,752.64 nett to the complainant within two weeks of this decision in full and final settlement of the claim.

Dated:   6^th December 2016