Complainant

Respondent

Anonymised Parties

A worker

A company

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-00011467-001

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011468-001

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00011526-001

23/05/2017

The complainant stated her employment was transferred pursuant to the transfer of undertaking regulations in January, 2017 to a third party. At the date of the transfer she was owed wages and holiday pay from her employer. Specifically, she was owed € 315.67 for the last week of 2016, € 640.50 holiday pay and € 183.00 in relation to 20 hours overtime.

She also stated that the first she knew about the transfer was when she noticed the name change on her payslips.

No Appearance.

ADJ 8666, CA-00011467-001 Payment of Wages

(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.

Section 2 “wages”, in relation to an employee, means 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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

Based on the complainant’s uncontested evidence, I find that the respondent was in breach of Section 5 of the Act in that they deducted the sum of € 315.67 from her last payment which said sum was for her last week’s work together with €640.50 in relation to her holiday pay.

ADJ 8666 CA-00011468-001 Organisation of Working Time Act, 1997.

Based on the complainant’s uncontested documentary evidence, I find that she did work 20 hours for which she was not paid. She was paid €9.15 per hour. I find that the complainant should have been paid €183.00 for those aforesaid twenty hours.

ADJ 8676 CA CA-00011526-001

The complainant stated that the respondent failed in its duty pursuant to Regulation 8.

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d)     any measures envisaged in relation to the employees.

Regulation 10 (5) A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(b)     require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)     in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

I find based on the evidence adduced by the complainant that the case well founded and that the respondent was in breach of Regulation 8.

Pursuant to Regulation 10 (5)( c) I award the complainant the sum of €1,000.00 compensation.