ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00007823

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/06/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 6 Payment of Wages Act, 1991 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

Summary of Complainant’s Case:

The complainant commenced employment with the respondent in September, 2012. The company is based in the United States. The complainant was employed to carry out marketing and surveys in this jurisdiction. This contract of employment was with the named respondent however he was paid by the Irish branch of the company. That can be seen on his payslips. The two main directors of the company were married to one and other up until Late 2015/ early 2016. The female took over the company when they separated. The complainant stated that his working scheduled varied from very busy to having nothing to do depending on the time of year. He was very quite from April, 2016. In October he wasn’t paid. He called the head office in the United States and was informed he would have to talk to the CEO. He did that and she stated that she “ was unware if you were still working with clients and surveys”. She said she would look into it. He never heard from her again. Every time he called the phone would ring out. He resigned his position in March, 2016 giving four weeks notice.

The complainant handed in payslip noting that pursuant to the contractual agreement he was paid a gross monthly amount of €4,000.00 net € 3,204.74.

Summary of Respondent’s Case:

There was no appearance for or on behalf of the respondent.

Findings and Conclusions

Payment of Wages Act, 1991

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, an

(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.

6. —(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks 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, were 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.

I am satisfied based on the complainant’s evidence, together with the documentation submitted that the respondent is in breach of Section 5 in that they failed to pay the complainant his contractually agreed salary for the months November, December, 2016 and January, February March, 2017.

Decision:

Section 41 of the Workplace Relations Act 2015 and Section 6 Payment of Wages Act, 1999 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complainant’s claim succeeds. I award the complainant the sum of € 16,023.70

Dated:               3^rd August 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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