ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005318

Complaint for Resolution:

Date of Adjudication Hearing: 05/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) 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.

Attendance at Hearing:

                                                 A Driver V A Logistics Company

Complainant’s Submission and Presentation:

The complainant commenced worked as a driver for a logistics company on 6 February 2016. He told the hearing that late in February 2016 that on returning to the respondent yard at 9.15pm, he caught the side of his lorry against a stationary artic trailer unit. He reported the incident and the truck were inspected by the owner of the company, who informed him that he would get the damage assessed. The complainant did not hear anything further on the matter.

The complainant handed in his notice and left the respondent employment in May 2016 and had difficulty receiving both his two week’s wages in hand and his P45. Prior to his leaving, the owner had assured him that he would receive hi sP45 with his last payment from the company.

He made a number of attempts to resolve the non payment issue but was unsuccessful. He liaised directly with Revenue to re-align his tax credits when he could not secure a P45 from the respondent. On July 1, 2016, he received a payment of €34.92 into his bank account. This was short €650.00 of what he should have received based on the two weeks he worked in hand.

He referred his case to the WRC on 8 October 2016.

Respondent’s Submission and Presentation:

There was no appearance on or behalf of the Respondent at the hearing.

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 requires me to make a decision in the case

Legislation involved and requirements of legislation:

Section 5 of the Payment of Wages Act, 1991 provides:

Regulation of certain deductions made and payments received by employers.

5

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:

The respondent was not in attendance for the hearing . I delayed the commencement of the hearing for 15 minutes while I made efforts to secure information on possible reasons for the non attendance of the respondent.

I am satisfied that the respondent was properly notified of the hearing. I also allowed a period of five days after the hearing to allow for the respondent to offer any submission in the case.

I listened carefully to the complainant’s outline of his case. He had not received a contract of employment. He had received regular payments of wages throughout his time with the respondent. He gave evidence of working two weeks in hand in February 2016 which was not returned to him on his cessation of employment.

I am satisfied that the complainant made every reasonable attempt to resolve the situation but was met by a failure to engage by the respondent .The incident with the lorry was not discussed from the date of occurrence. There were no other grounds raised by the respondent for non payment of the full value of the two weeks wages in hand from February.

The evidence given by the complainant was uncontested. I find that the respondent breached Section 5 of the Act and the complaint is therefore well founded.

I order the respondent to pay €650.00 nett to the complainant within four weeks of the date of this decision.

Patsy Doyle, Adjudicator.

Dated:   30^th January 2017