Complainant

Respondent

Parties

A Sales Assistant

A Toy Retailer

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-00009040-001

12/01/2017

The Complainant was employed by the Respondent as a Sales Assistant from 14^th October, 2014 until 28^th August, 2016. The Complainant was being paid an hourly rate of pay of €9.15 upon the termination of his employment. The Complainant claims that the Respondent made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant was obliged to work 32 hours per week under the terms of his contract of employment but he claims that he regularly worked in excess of this number of hours per week but was not paid for the additional hours that he worked. The Complainant also claims that he wasn’t paid for the last week of his employment and for two other weeks during his period of employment.

The Complainant claims that he was due an amount of €1,500.00 in unpaid wages when his employment with the Respondent terminated on 28^th August, 2016.

The Respondent is a large retailer of toys and employs between 60 and 90 employees at different periods during the year. The Respondent submitted that employees are paid a week in arrears every Thursday and overtime is paid at a rate of time plus one third for hours worked in excess of 40 hours in a given week, for time worked on Sunday and on a Bank Holiday.

The Respondent submitted that the Complainant was paid for every hour that he worked during his period of employment and it submitted documentation (including payslips and clock records of hours worked for the Complainant) in support of this contention.

The Respondent submitted that the Complainant left his employment of his own volition on 28^th August, 2016 to take up alternative employment and denies the claim that he was due an amount of €1,500.00 in unpaid wages at the time is employment was terminated.

The Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “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.”

Section 5(1) of the Act provides:

“(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.”

Section 5(6) of the Act provides:—

(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.

The issue for decision is whether the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant was employed by the Respondent from 14^th October, 2014 until the termination of his employment on 28^th August, 2016. The Complainant referred this complaint to the Director General of the WRC on 12^th January, 2017. Therefore, the cognisable period for the within complaint is from 13^th July, 2016 to the termination of employment on 28^th August, 2016. No application for an extension of time was made by the Complainant.

The Complainant claims that he was due a total of €1,500.00 in unpaid wages upon the termination of his employment on 28^th August, 2016. The Complainant claims that he wasn’t paid for the last week of his employment and for two other weeks during his period of employment. The Complainant also claims that he regularly worked in excess of his contractual hours of 32 hours per week but was not paid for the additional hours that he worked.

The Respondent submitted comprehensive documentary evidence (including payslips and time clock records) in relation to the wages paid to the Complainant during the cognisable period. I am satisfied that these records demonstrate that the Complainant was paid for all of the hours that he worked during the cognisable period. I find that the Complainant failed to adduce any cogent evidence to support his claim that he was due an amount of €1,500.00 in unpaid wages upon the termination of his employment.

Accordingly, I find that the Complainant’s claim under the Payment of Wages Act 1991 is not well founded and must fail.  

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

Payment of Wages Act 1991 – Section 5 - Unpaid wages – Claim not well founded