Complainant

Respondent

Anonymised Parties

An international student

An IT company

Representatives

none

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-00013323-001

26/08/2017

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

CA-00013323-002

26/08/2017

The complainant referred both complaints under the Payment of Wages Act, 1991, on 26 August 2017.   He set out the facts in his complaint forms. No written submissions were received from either party. The parties were notified of the hearing of the complaint on 30 November 2017. On 4 December 2017, the Director General delegated the case to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under the Workplace Relations Act 2015. I held a joint hearing of the complaints on 11 January 2018. The complainant and a witness were in attendance. The respondent was not in attendance. However, the respondent contacted the Commission by email on 16 January 2018 to say that he had been out of Dublin “last month” and had only received the hearing notification on 16 January. I note that this absence happened well after the hearing notification letters were sent out, yet the respondent did not apply for an adjournment.     In the circumstances, I am satisfied that I proceeded correctly in taking the complainant’s uncontested evidence at the hearing on the day it was scheduled.

The complainant, who is a student and a national of Brazil, who is only permitted to work twenty hours per week, started to work for the respondent on 20 April 2017 and ended his employment on 3 July 2017. The respondent company at the time was a tiny internet start-up in which only the owner and the complainant worked. The complainant’s pay was €20 per hour, which is also confirmed by his pay slips.

CA-00013323-001: As regards the complainant’s pay, he adduced two separate pieces of evidence. He stated that the respondent had promised him to pay his rent as part of his salary, but not set it out on his payslip. The complainant received promises from the respondent that the rent had been transferred into the account of the complainant’s landlord. However, this failed due to lack of funds in the respondent account. The complainant proved all relevant communications extensively by way of contemporaneous mobile phone records. They were also corroborated by the complainant’s partner, who attended the hearing as a witness. Because of the bounced rent payment, the complainant and his partner got into significant trouble with their landlord and were only able to stave off eviction by having money wired from Brazil. The value of the rent payment was €1,100 per month.

In terms of the complainant’s pay for hours worked, the complainant submitted payslips which show him to be entitled to gross wages of €2892.94 on 1 June 2017 and €1540 on 1 July 2017. The first payslip included the months of April and May 2017. The complainant stated, however, that he only ever received €650, and that in particular, a cheque for €2000 which was meant to pay part of the complainant’s wages bounced and was returned unpaid. The complainant proved these facts from his mobile phone banking application as well, and submitted the bounced cheque and the letter from his bank in evidence. The app shows that the complainant received €200 on 23 November 2017, €200 on 7 December 2017 and €250 on 18 December 2017.   The complainant had to pay a fee of €4.44 to his bank for the bounced cheque.

CA-00013323-002 : As regards the legal situation surrounding his employment, he gave evidence that he paid the respondent €300 in cash to pay for a lawyer to draw up a contract of employment for him, and another €1000 in cash for the respondent to obtain a regular visa with an employment permit for him. The complainant stated that he did not get a contract or a visa or a re-imbursement of these monies. The complainant expressed doubt that this was a complaint he could bring under the Payment of Wages Act, but explained that he did not know under what other statute to bring such a complaint.

The respondent did not appear at the hearing and did not make a written submission. However, in the email sent to the Commission post-hearing, the respondent appeared to acknowledge the merit of the first of the two complaints.

CA-00013323-001: I am satisfied from the complainant’s evidence that the rent payment promised to him as part of his salary constitutes a benefit in kind within the meaning of S. 1(1)(v) of the Payment of Wages Act, 1991, and that the complainant is therefore entitled to the payment of €1,100 for the two months for which he could adduce payslips (June and July 2017), subject to lawful deductions, and to updated payslips pursuant to his entitlements.

I am further satisfied that the complainant is entitled to the payment of his outstanding wages.

CA-00013323-002: As regards the cash payments for the drawing up of a contract of employment and obtaining a visa, I am not satisfied that these fall under wages lawfully owed to the complainant, which means they do not come under the remit of the Payment of Wages Act. I therefore find that I have no jurisdiction in this matter, and that the complainant’s second complaint cannot succeed. The complainant would be well advised to obtain independent legal advice as to the remedies available to him on this matter.

I find that the first of the complainant’s two complaints (CA-00013323-001) is well founded, and order the respondent to pay the complainant € 5582.94, which comprises the complainant’s gross pay for the period of his employment, this being €4432.94, plus rent payment of €1100 for two months as benefit in kind, minus the €650 already received. This sum shall be subject to any lawful deductions.

I further order the respondent to provide the complainant with updated payslips, which properly shows the benefit in kind of his rent payments, including taxes paid on it.

Last, in light of what I consider the gravity of the breach of the complainant’s rights, I order pursuant to my powers under Section 6 of the Payment of Wages Act, 1991, that the respondent pay the complainant the net amount of one week’s wages, this being €400 gross, in compensation subject to any lawful deductions.

As regards the complainant’s second complaint (CA-00013323-002), I find I have no jurisdiction in this matter for the reasons set out above.

Payment of Wages Act, 1991 – Section 1 – Section 4 – Section 5 – monies collected from complainant for contract and visa not wages – no jurisdiction – Section 6 – compensation.