Complainant

Respondent

Anonymised Parties

A Sales Executive

A Kit Building Company

Representatives

In Person

No Appearance by or on behalf of the Respondent.

Act

Complaint Reference No.

Date of Receipt

 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012598-001

18/07/2017

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

CA-00012598-002

18/07/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 6    of the Payment of Wages Act, 1991

CA-00012598-003

18/07/2017

The Complainant worked as a Sales Executive over a 7 week   period in February and March of 2017. His complaints before the WRC centre on   his not being paid or receiving cesser pay on leaving employment.

The Complainant commenced work with the Respondent from 6   February 2017 and concluded his employment on 22 March 2017. He had found the   job advertisement on the Farm Relief Agency Web site and met the Respondent   in the company of two others at a Hotel for interview on January 2, 2017.He   was offered the job.

On January 5, 2017, he conveyed his acceptance of the   offer to work for €750.00 gross per week plus commission for a 40 hour week. He   provided his bank details to the Respondent. He was not provided with a   contract of employment, nor did he receive pay slips. He was to work from Home,   was promised a Van and a phone, neither of which materialised. He attended a   two day training course in Portlaoise.

The Complainant had a provisional start date of February   1, 2017 and commenced on 6 February The Complainant submitted that he was not   paid for the entire time that he worked for the respondent.

CA -00012598-002 Organisation   of Working Time Act, 1997.

The Complainant submitted that he was employed for 32 days   over a period of 7 calendar weeks and had not received annual leave on cessation   of employment. He sought payment in lieu of annual leave at €369.00.

CA 00012598-003 Payment of   Wages Act, 1991.

The Complainant submitted that he had not been paid by the   Respondent over his course of his 7 calendar weeks of employment. He   submitted that he is owed €4,800 in unpaid wages. He submitted that he was owed €5,236 in expenses.

The Complainant gave evidence that he agreed to work for   €750.00 gross per week plus commission. He submitted a copy of a series of   texts that transferred between him and the Respondent from 6 January 2017 to   April 10, 2017. He referred to a text from the Respondent dated 11 January   2017 at 13.06:29 hrs from the Respondent.

“ Would you be happy with 750 gross to start plus commission “

The Complainant gave evidence that he had completed the   work along with a two day training course in Portlaoise. He understood that   the Respondent was changing from being a sole trader to becoming a limited   company. He was due to be paid on February 16 and did not receive payment. He   pursued the Respondent for payment, only to met by a series of excuses for   the non payment and the non availability of the Respondent through repeated   hospitalisation. He did receive a cheque for €3,000 on March 8, raised as a   personal cheque from the Respondent and his partner. This was returned marked   “insufficient funds”.

He met the Respondent on 15 March who confirmed that he   was in the process of setting up a company and assured him that his wages   would be paid. They were to meet again   on March 20, but the Respondent failed to contact him.

The Complainant submitted a text from the Respondent dated   21 March 2017, which implied that he “would give him everything “the next day   but did not turn up to a pre arranged meeting with the complainant.

The Complainant submitted a text dated 22 March 2017 at   09.31 hrs which stated that “money will be lodged in directly to your account   “and terminated his employment, referring all matters to his solicitor. There   was some further text discussion between the parties but payment of   outstanding wages had not followed.

The Complainant understood that there were 5/6 employees   working for the Respondent. He did not have evidence of a clocking in   procedure or time sheets.

The Respondent has not responded to this claim and has not   made an appearance at the hearing. He has not made contact with the WRC in   the aftermath of the hearing.

CA -00012598-002 Organisation   of Working Time Act, 1997.

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

CA -00012598-003   Payment of Wages Act, 1991.

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

CA -00012598-002 Organisation of Working Time Act, 1997.

I   have considered the complainants presentation on lack of cesser pay. I have   concerns on the lack of documentation concerning the period of employment   outside a thread of texts which confirmed that the complainant had not been   paid during the course of his work. Outside of the complainant’s evidence that   he worked for the respondent for this period, I have no material evidence of   employment before me. However, I am satisfied, based on the complainant’s   evidence that he completed the work in the manner stated.

Section   23 of the Act provides for Cesser Pay:

Compensation on cesser of employment.

23

23.—   (1) (a) Where —

(I) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the   relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave,   be paid by his or her employer an amount equal to the pay, calculated at the   normal weekly rate or, as the case may be, at a rate proportionate to the   normal weekly rate, that he or she would have received had he or she been   granted that annual leave.

I find that it falls to the Respondent to reach the burden   of proof in this case. In his absence, and in the absence of any company   records maintained or submitted, I find that the complaint is well founded   and I find in favour of the complainant.

 CA -00012598-003 Payment of Wages Act, 1991.

I   have considered the extraordinary circumstances surrounding this claim. I   would have liked to have heard a response of any kind from the respondent. I   am satisfied that he was notified of the hearing. I postponed the hearing to   10.50 hrs to permit an attendance. I also contacted the WRC to check for any   other eventualities. There were none.

I   accept from the evidence adduced by the Complainant that he worked for the Respondent during the   dates submitted: 6 February 2017 to 22 March 2017.

Section 1   of the Payment of Wages Act, 1991 defines both an employee and an employer   for the purposes of the Act. I am satisfied that the employment relationship   described at the hearing reflects this definition.

Section 1   allows for wages to be considered but has no remit over expenses.

Section   5(6) of the Act addresses unpaid wages:

(6) Where—

( a) the total amount   of any wages that are paid on any occasion by an employer to an employee is   less than the total amount of wages that is properly payable by him to the   employee on that occasion (after making any deductions therefrom that fall to   be made and are in accordance with this Act), or

( b) none of the wages   that are properly payable to an employee by an employer on any occasion   (after making any such deductions as aforesaid) are paid to the employee,

Then, except in so far as the deficiency or non-payment is   attributable to an error of computation, the amount of the deficiency or   non-payment shall be treated as a deduction made by the employer from the   wages of the employee on the occasion.

I find that the complainant went to extraordinary lengths to secure   his payment of wages and was hampered in that regard. This is not how an   employment relationship is meant to unfold.   I find that the complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires   that I make a decision in relation to the complaints in accordance with the   relevant redress provisions under Schedule 6 of that Act.

CA -00012598-002   Organisation of Working Time Act, 1997.

Section 27 of the Organisation of Working Time Act, 1997   requires me to make a decision in relation to the complaint. I have found the   complaint to be well founded.

I order the Respondent to pay the complainant compensation   for cesser pay of €369.00.

CA   -00012598-003 Payment of Wages Act, 1991.

Section 6 of the Payment of Wages Act, 1991 requires me to   make a decision in relation to the complaint submitted.

I have found that the complaint is well founded and I   order the Respondent to pay the complainant €4,800 in unpaid wages, less   statutory deductions.

Payment Of Wages, Annual Leave.