ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006995
Parties:
| Complainant | Respondent |
Parties | A General Operative | A Facilities Management Company |
Complaint(s):
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-00009529-001 | 03/02/2017 |
Date of Adjudication Hearing: 16/06/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
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 and to present to me any evidence relevant to the complaint.
Background:
This case refers to a Lithuanian National that was employed on a part time basis from December 2014 to September 2016 at which time the Complainant left his work as he alleged he was not being properly paid.
The Complainant maintained that he was paid €10 per hour for an eight hour day, with up to 4 days a week depending on the work on hand by the Respondent. |
Summary of Complainant’s Case:
The Complainant alleged that he did not receive payslips, nor did he receive payment for all the hours he worked where he maintained that for some jobs he was required to travel for eight hours to and from various work sites in addition to the days work, but that he was not paid for his travel time.
In addition the Complainant maintained that he was either paid by cash and/or by bank transfer but that he did not always receive payslips for these wage payments. The Complainant also alleged that he did not receive correct payment for the work completed. He further maintained that he was never provided with a contract of employment.
The Complainant alleged that he is due approximately €3,000 in wages from the Respondent. The Complainant maintains this amount also includes payment for maintenance of his van that he used for the work, and which was agreed to be paid by the Respondent.
The Complainant also alleged that the Respondent failed to pay his PRSI.
At the hearing the Complainant provided sample pay slips where for 28th February 2016 amounted to €356.40 gross, representing a 35hour week. The Complainant acknowledged that his working week could vary, however as he was not provided with regular payslips it was difficult for him to show what he would receive weekly. In any event he contended that as no PRSI payments were made he was at a disadvantage to be precise in relation to what he was due to be paid.
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Summary of Respondent’s Case:
The Respondent advised that the work involved the cleaning of houses and property where at the commencement and completion of a job the Complainant was required to take a photograph and submit both photographs to the Respondent. The Respondent argued that there was a dispute between the parties in relation to the completion of a job and as a consequence he withheld payment due to the Complainant. The Respondent indicated that he owed the complainant approximately €1,000 Euro.
The Respondent maintained that the Complainant was employed on a part-time basis where his work would vary from one day a week to four days per week. The Respondent argued that the complainant would have worked an average eight hour day when he was tasked with a job. The Respondent advised that he would have a record of wages paid to the Complainant, however he did not have them to hand, and he also acknowledged no contract of employment was issued as he did not understand this was required for part-time employment.
The Respondent also maintained that the maintenance and upkeep of the Complainant’s van was not something he agreed to pay for and therefore the claim of €3,000 underpayment of wages was incorrect. He maintained that he only withheld approximately €1,000 due to the Complainant failing to properly complete his work.
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Findings and Conclusions:
In accordance with section 4 of the Payment of Wages act, 1991 an employer should give or cause to be given to an employee a statement in writing specifying clearly the gross amount of wages payable to the employee and the nature and amount of any deduction therefrom. A statement under this section of the Act should be given to the employee concerned as soon as such payment may be thereafter made.
Section 5 of the Act also requires that the employer shall not make the deduction from the wages of an employee unless such deduction is required or authorised to be made by virtue of the term of the employee’s contract of employment... and in the case of the deduction, the employee has given his prior consent in writing to it.
Furthermore section 5(2) of the Act states that an employer shall not make the deduction from the wages of an employee in respect of any act or omission of the employee unless the deduction is required or authorised to be made by virtue of a term of the contract of employment made between the employer and the employee; and in the case where 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 a mission and amount of the deduction.
In light of the fact that the Complainant did not receive payslips for some of his wages, and the fact that the Respondent acknowledged that he withheld payment of at least €1,000 from the Complainant, I find that the Respondent unlawfully deducted wages from the Complainant in breach of section 5 of the Act. |
Decision:
Section 41 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 requires that I make a decision under the relevant sections of that Act.
Having heard the evidence submitted by the parties, and in accordance with Section 6 of the Payment of Wages Act 1991, I find the complaint is well founded.
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.”
The evidence supports that the Respondent has not behaved reasonably under the circumstances. He has failed to support his contentions regarding the actual money he should have been paying the Complainant; has failed to justify the basis of any deductions made, and furthermore made such deductions without adhering to his obligations under the payment of wages act. The absence of any accurate pay records or PRSI and employer contributions makes it difficult to ascertain the actual wages owed to the Complainant, who as an non Irish national would be particularly disadvantaged in relation to awareness of his rights at the time of the offences being committed by the Respondent.
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 at a minimum of €1,000 in unpaid wages due to the Respondents deduction, and exceeds the net wages payable to the Complainant in the week preceding the deduction (which on average should have been €356.40 per week) 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 €2,000; and in addition I also award the payment of holiday pay to the amount of €1,120. Therefore the total wages owing to the Complainant amounts to €3,120 (after the making of any lawful deduction therefrom).
I direct that these sums be paid to the Complainant within 42 days of the date of this Decision.
Dated: 28th July 2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Payment of Wages, unlawful deduction from wages |