ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005875

Complaint for Resolution:

Date of Adjudication Hearing: 17/02/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Lansdowne House, Ballsbridge, Dublin 4

Procedure:

The aforesaid complaint under Section 6 of the Payment of Wages Act 1991 was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 10^th November 2016. In accordance with Section 41(4) of the Workplace Relations Act 2015, the Director General referred the complaint to me for adjudication. I proceeded to hearing on 17^th February 2017 and gave the Parties an opportunity to be heard and to present any relevant evidence.  There was no appearance on behalf of the Respondent, a registered limited company listed on the CRO as ‘Normal’ as at the time of hearing. Before proceeding to hearing, I confirmed that the Respondent and/or a Receiver / Liquidator on its behalf had not made any application for an adjournment or otherwise engaged with the WRC. I satisfied myself that all correspondence including notification of the hearing date dated 16^th January 2017, confirming the venue, date and time of the hearing had issued to the correct registered address. I also made enquiries as to the Respondent’s whereabouts with reception and remained in the hearing room for the scheduled duration. All the documentation referred to and relied upon by the Complainant was furnished at and/or after the hearing. All evidence presented along with the relevant legal provisions has been taken into consideration in arriving at this decision.

Background:

The Complainant is seeking compensation in respect of the Respondent’s non-payment of wages and annual leave on leaving his employment, contrary to Section 5 of the Payment of Wages Act 1991.

Summary of the Complainant’s Case:

The Complainant confirmed that he was employed by the Respondent Security Company as a Security Guard from 25^th March 2016 until he left in October 2016. He furnished a contract of employment confirming his hourly pay of €10.75 per hour, payable fortnightly, one week in arrears by cheque or credit transfer. The contract had a blank space in respect of his hours of work. In relation to annual leave, it confirmed that the holiday year was calculated according to the calendar year and payment was a pro-rata entitlement of 4 working weeks or 8% of the total hours worked.

The Complainant gave evidence confirming that in the course of his employment, the Respondent had unilaterally changed payment of his wages from fortnightly to monthly and became increasingly delayed. He was not provided with the hours of work promised to him and was forced to take on other part-time work as a kitchen porter. He was also never furnished with a Company Handbook or Grievance Procedures. As he could not continue working in these conditions, he gave a week’s notice to his supervisor and went on his holidays. At the material time he had not been paid his last month’s wages of €1160.68 net which became due on 21^st October 2016 as per payslip furnished.

The Respondent also failed to pay the Complainant’s annual leave for the period of his employment. The Complainant provided payslips confirming that he had worked a total of 664.25 hours (falling within the last calendar year and statutory time-limit). He sought payment of annual leave comprising of 8% of the total hours worked, calculated in accordance with Sections 19 & 23 of the Organisation of Working Time Act 1997 and amounting to €571.26 gross (53.14 hours @ €10.75 per hour). When he returned from holidays in early November 2016, he followed up on his outstanding pay. His supervisor told him that he would call him back but never did. He tried calling and emailing the Respondent’s office and when he received no response, he went to the office which was locked up and the Respondent appeared not to be trading. Additionally he was never furnished with a P.45.

Summary of the Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 1 of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as including: “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,…” I am therefore satisfied that the outstanding wages and annual leave claimed fall within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act. In relation to deductions from wages as alleged, Section 5(1) of the Payment of Wages Act 1991 provides: “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.” Section 6 of the Payment of Wages Act 1991 provides for the referral of complaints arising from a contravention of Section 5 to the WRC. Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral. In this respect, I am satisfied that this complaint has been brought within the six-month time limit from the date of alleged contraventions in October 2016. I am also satisfied based upon the unrefuted evidence of the Complainant which I found to be credible and was also supported with documentation, that (1) he was in insurable employment with the Respondent at the material time (subject to any investigations deemed necessary by the Department of Social Protection) and (2) as at the time of leaving, he was owed outstanding wages of €1160.68 net (as per his last payslip) and his accrued annual leave of €571.26 gross.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. As specified by Schedule 6, Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an 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, where 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.” Had the complaint in respect of non-payment of annual leave been made under the Organisation of Working Time Act 1997, I would have had jurisdiction to award an additional sum of compensation for breach of that Act. However, any such amendment is not required as Section 6 of the Payment of Wages Act 1991 allows latitude for an award of up to twice the outstanding amount if it exceeds the net wages payable in the week preceding the deduction. As the total outstanding sum due and owing in the instant case is €1731.94 (€1160.68 net in unpaid wages and accrued annual leave of €571.26 gross) exceeds the net wages payable to the Complainant in the week preceding the deduction, I consider it reasonable to exercise such latitude in this particular case and to direct the Respondent to pay the Complainant compensation in the sum of €2500 (subject to any lawful deductions from the annual leave pay of €571.26).

NOTE: For the purposes of applying for payment from the Insolvency Payments Scheme operated by the Department of Social Protection, the relevant application should be submitted to the Insolvency Payments Scheme Section along with a copy of this decision and all the supporting documentation referred to herein. An appeal against any decision of the Minister for Social Protection lies back to the WRC under Section 9 of the Protection of Employees (Employers’ Insolvency) Act 1984.

Dated:   26^th April 2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Payment of Wages - Definition - Compensation