Complainant

Respondent

Anonymised Parties

A Software Developer

A Software Company

Representatives

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-00010073-002

06/03/2017

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

CA-00010073-003

06/03/2017

The complainant worked for the respondent but did not receive his full monthly pay on a regular basis and did not receive annual leave.

The complainant worked with the respondent from 14th March 2016 until he left on 21st February 2017. His salary was €35,000. He never received his monthly pay slips and when he eventually received them, they did not reflect the monies that he actually received in his bank account. He regularly asked the respondent for the outstanding monies and the respondent advised that the accountant was sorting it out. By his calculation he had originally been owed €6,325.68 nett in relation to all the months that he did not receive his full pay. He received a payment of €2,000 after the last hearing but there remained an outstanding €4,325.68 and the respondent broke the agreement that had been entered into after the last hearing. He acknowledged that he had not referred some of the payments that he was referring to in the cognisable period.

The complainant has taken up employment in Portugal and had to return to ensure that his case was processed and expressed his upset that the respondent failed to show up and that he failed to honour a previous agreement.

The respondent had attended a previous date for the hearing where agreement was reached between the parties to settle the claim. When this agreement failed, a new hearing date was scheduled and the Respondent was advised of this and did not engage with the Workplace Relations Commission in relation to the complaints. The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

Monthly the complainant was due to be paid €2,916.66 gross. On a regular basis the salary failed to be paid on time and only some monies would be paid. At a previous hearing the respondent committed to pay monies to the complainant but only paid some of what was agreed between the parties on that date.

As that agreement failed, another date was allocated for the hearing. The respondent did not attend.

Section 1(1) of the Act defines wages as meaning “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,

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) details

( 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 instant claim was submitted to the Director General of the Workplace Relations Commission on 6th March 2017 and therefore, only contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 7h September 2016 to 6th March 2017 are cognisable for the purpose of obtaining redress. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of wages prior to those dates, it is statute-barred and, to that extent.

I uphold the complaint and order the respondent to pay to the complainant the appropriate wages of €2,948.89 nett relating to the cognisable period.

The complainant worked with the respondent from 14th March 2016 until he left on 21st February 2017 and was on a salary of €35,000. He never received any annual leave during his employment.

An adjudication hearing was held and the respondent committed to make payments to the complainant but the respondent only paid one such payment. Evidence was provided of wage slips and bank statements reflecting how much had been received from the respondent.

The complainant has taken up employment in Portugal and had to return to ensure that his case was processed and expressed his upset that the respondent failed to show up and that he failed to honour a previous agreement.

The respondent had attended a previous date for the hearing where agreement was reached between the parties to settle the claim. When this agreement failed, a new hearing date was scheduled and the Respondent was advised of this and did not engage with the Workplace Relations Commission in relation to the complaints. The Respondent did not attend the Hearing.   I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

The complainant did not take any annual leave during his employment. While the complainant received some monies from the respondent, this related to unpaid salary and was unrelated to his annual leave entitlement.

Section 19 details that

— …an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

( b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours,

The complaint was received by the WRC on 6th March 2017, and the cognisable period covered by the claim is the six-month period which in this instant case is from 7th September 2016– 6th March 2017. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable.

In accordance, therefore with Section 19(6) the Complainant accrued a statutory entitlement of 78 hours annual leave at a rate of €17.26 per hour. I find the complainant’s claim is well founded and I order the Respondent to pay to the Complainant €1,346.28 gross.

CA-00010073-002

I find the complainant’s claim is well founded and I order the respondent to pay to the complainant wages of €2,948.89 nett.

CA-00010073-003

I find the complainant’s claim is well founded and I order the Respondent to pay to the complainant €1,346.28 gross.

Annual leave, unpaid salary, respondent did not attend.