ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009848

Complaint:

Date of Adjudication Hearing: 10^th October 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act 1991 and 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:

The Complainant was submitting that he had not been paid his wages for hours worked for the Respondent in breach of his rights under the 1991 Act and the Respondent was denying the complaint.

Summary of Complainant’s Case:

The Complainant said the Respondent had failed and refused to pay him his wages due for hours worked by him for the Respondent.

The Complainant said that he was employed by the Respondent from 6^th July 2017 to 23^rd July 2017, a period of 2 weeks and 3 days for the Respondent and he said his agreed rate of pay was €9.25c per hour.  

The Complainant said he worked the following hours while employed by the Respondent:

• Friday 14^th July, 8 hours, from 11.00pm to 7.00am
• Saturday 15^th July, 8 hours, from 11.00pm to 7.00am
• Sunday 16^th July, 8 hours, from 11.00pm to 7.00am
• Wednesday 19^th July, 8 hours, from 11.00pm to 7.00am
• Thursday 20^th July, 8 hours, from 11.00pm to 7.00am
• Friday 21^st July, 9 hours, from 10.00pm to 7.00am
• Saturday 22^nd July, 9 hours, from 10.00pm to 7.00am
• Sunday 23^rd July, 9 hours, from 10.00pm to 7.00am

The Complainant said this is a total of 67 hours worked.   He said that he had been paid for the first 4 days, which is 32 hours (8 x 4) leaving a total of 35 hours pay due to him, which he said equates with €323.75c (9.25 x 35) and he sought a decision to that effect.

The Complainant said that after not been paid for the subsequent hours worked despite his best efforts to secure same he emailed the Company Accountant about his outstanding wages and the Accountant responded to state that payment to him had not been authorised.  

The Complainant said that he was informed by a named member of staff that the Manager did not authorise payment of wages to him.

The Complainant said that he telephoned the Hotel and left a voice message about his unpaid wages, but he received no reply.   He said that he telephoned the Hotel again and he spoke to a named member of staff, who informed him that management were not willing to talk to him and wages would not be paid to him.   The Staff Member in question told him that she was just passing on a message and could not tell him anything further.

The Complainant said that he again emailed the Company Accountant to no avail.

The Complainant said that eventually the Manager rang him and made a serious allegation to him (which it is not appropriate to repeat in this decision and which is denied by the Complainant}.   The Manager said to him: “You’re not getting paid after what you did …..”

The Complainant submitted that his complaint was well founded and he sought a finding and decision to that effect.

The Complainant contested the records submitted by the Respondent

Summary of Respondent’s Case:

The Respondent was denying the Complainant’s complaint and were denying that there was any breach of the Complainant’s rights under the 1991 Act by them.

The Respondent said that the Complainant was paid by them for all times/hours that he actually worked.  

The Respondent said that the Complainant was actually sleeping on the Hotel premises on 14^th July and accordingly was not entitled to be paid wages. (This was denied by the Complainant)  

The Respondent said that on 15^th July the Complainant allowed smoking in the bar, he provided ashtrays and in addition he served alcohol when he should not have and there was no money in the till for the alcohol consumed. (The Complainant also denied these allegations)

The Respondent said that there was no record of the Complainant working on 16^th, 19^th and 20^th of July.

The Respondent said that the inappropriate incident complained of by them occurred on 21^st July.

The Respondent said the Complainant did not work on 22^nd and 23^rd July.

The Respondent subsequently submitted copies of the Complainant’s clock records and submitted that he did not work on 16^th, 19^th, 20^th, 22^nd and 23^rd July 2017.

Findings, Conclusions and 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 in relation to the complaint consisting of redress in accordance with the same Section of the 1991 Act.

In view of some of the submissions and/or allegations made at the hearing I consider it necessary to state that my sole function in the complaint under the 1991 Act is to consider and decide upon whether or not the Complainant worked hours for the Respondent for which he was not paid and I will not be making any comments or findings on any other matter.

I note that there was serious conflict between the evidence of the parties that could not be reconciled and accordingly I have had to make my findings and decisions on the ‘balance of probabilities’.

I note that it is acknowledged that the Complainant was not provided with a written statement of conditions of employment by the Respondent that provided for or allowed the Respondent to make deductions from his wages for alleged non-performance of duties or alleged misbehaviour at work.   Indeed I am of the view that even had such a written statement been provided by the Respondent to the Complainant deductions would not be legally permissible in the circumstances alleged by the Respondent and I believe that following discussions at the hearing this is accepted by the Respondent.

I do not accept that the Respondent is entitled to decline or refuse to pay the Complainant wages for time worked for the reasons stated and the submissions of the Respondent in that respect are rejected by me.

I find the evidence of the Respondent somewhat contradictory and somewhat incoherent in relation to time worked by the Complainant for them.

On the one hand their first or initial statement to the hearing was that the Complainant was not and should not be paid for hours worked for a number or reasons including the following allegations; being asleep at work; allowing smoking in the bar and serving alcohol to be served and with no money being in the till for alcohol served and finally not being paid because of alleged inappropriate behaviour by the Complainant on the premises on 21^st July. It should be noted that the last of these was the reason given to the Complainant for the non-payment of wages due and also be noted that the Complainant denied all of these allegations.   It was only after it was pointed out that that these were not valid reasons not to pay the Complainant for wages earned and fell to be dealt with otherwise that the Respondent then made the submissions that the Complainant did not work on certain days.

I also note find the Respondent submits that the Complainant was asleep at work on 14^th July and on 15^th July 2017 he allowed smoking in the bar, served alcohol to be served when he should not have and that there was not money in the till for the alcohol consumed.   All three of these alleged incidents are serious and dismissible offences, yet the Complainant, who would have been on a probationary period, was rostered for further work and worked on further days up to two weeks later.   I find this inconsistent and difficult to understand and accept.

I have decided for the above reasons and on the balance of probabilities that the evidence of the Respondent is not to be relied upon and that I prefer the evidence of the Complainant in these matters.

Based on the foregoing findings I have concluded and decided that the complaints are well founded and they are upheld by me.

The Complainant was not paid by the Respondent for 35 hours worked by him for the Respondent and accordingly he is due the sum of €323.75c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.

Dated: 22^nd November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words:   Unpaid Wages