Complainant

Respondent

Anonymised Parties

A fitness instructor

A fitness centre

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-00018757-001

26/04/2018

The Complainant, a fitness instructor and receptionist at a personal fitness business, was dismissed and was not paid his final month’s salary.

He is not contesting the dismissal but is asserting that his final month’s salary has been withheld contrary to the provisions of Section 6 of the Payment of Wages Act, 1991.

The Complainant says he was dismissed from his employment with the Respondent on the 21st February 2018 and says he had not, to date, received any written explanation for the dismissal from the Respondent.

He says he was due his final pay on the 1st March 2018 for hours worked before the date of his dismissal. The gross amount due was €1,733.50, with the net amount on the final payslip - €1,586.78. This figure was reduced to €0 by the respondent for alleged financial misconduct by the Complainant. The Complainant denies any misconduct and says that the Respondent made an unlawful deduction from his wages of this net amount.

The Respondent says that the Complainant had been warned on a number of occasions about his performance, but that they had worked with him through mentoring and training to improve his performance. Nonetheless they discovered that:

1.       He had returned used class passes to members in contravention of company policy, which caused financial loss to the company. They would be conducting an investigation to assess the damage caused and deduct the cost from his final salary.

2.       He had sexually harassed and passed racist comments to a work colleague.

3.       He had bullied and belittled staff members

4.       He had slandered and defamed his employer

5.       He had treated gym members of the gym in an unprofessional manner

6.       He abused his position in tampering with the CCTV cameras in the workplace.

The Respondent says that all of the above issues were articulated in a letter to the Complainant on the 21st February 2018 – the day he was dismissed.

They say that a further letter was issued to the Complainant on the 7th March 2018 in relation to his final payslip and said:

                 “Please find your final payslip and your P45 enclosed.

                     The damage you caused to the company totals €1,776.46.

                       €1,586,78 has been deducted from your final net salary”

The Complainant said that he never received the letters referred to above which the Respondent says he sent to him. He, therefore had no notice of the proposed deduction from his wages. In these circumstances – notwithstanding the provision in the Contract of Employment for such deductions to be made in these circumstances, the lack of notice and the fact that the deduction amounted to all of his net salary, renders the action of the Respondent unlawful.

Payment of Wages Act, 1991provides that an employer contemplating a deduction in consequence of disciplinary proceedings is under a duty to ensure:

-          That the employee has prior knowledge of the fact that a deduction can be made in the circumstances

-          The amount of the deduction is fair and reasonable

-          That the employee has timely notice of the amount of the deduction and the reasons for it.

In the circumstances of this case the Complainant had been dismissed from the employment when the letter was issued advising of the deduction from his final pay and the deduction was all of the pay.

As the actions of the Respondent were unlawful in terms of the notice given to the Complainant and amount deducted from the wages of the Complainant from his final month’s pay, I find in favour of the Complainant and say that he must be paid the full net pay amount of €1,586.78 by the Respondent.