ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009451
Parties:
| Complainant | Respondent |
Anonymised Parties | A Carpenter | A Construction Company |
Complaint(s):
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-00012338-001 | 06/07/2017 |
Date of Adjudication Hearing: 18/10/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
At the outset of the adjudication, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that the Respondent was on notice of the time, date and venue of the adjudication. Having been satisfied of this, and waited some time to accommodate a late arrival, I proceeded with the adjudication in the absence of the Respondent.
Background:
The Complainant, a carpenter, commenced employment with the Respondent, a construction company, on 18th January 2016. His employment ended on 21st January 2017. He was paid €500.00 weekly. A complaint was lodged in the WRC on 6th July 2017.
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Summary of Complainant’s Case:
The complaint provided a detailed written submission which included payslips and bank account details. The Complainant submitted that he commenced employment with the Respondent on 18th January 2016 and his employment with the Respondent was terminated summarily during a telephone conversation on 14th January 2017. He was employed as a carpenter but was never provided with a written contract of employment or a written statement containing the essential terms of his employment. He was promised €500 gross (€12.50 per hour) per 40 hour/5 day week, and it was on this basis that he took up employment with the Respondent. He was told by his employer that his net pay would be 80% of this. He therefore expected to receive €400 per 40 hour week into his bank account. The Complainant made a careful note of all hours he worked in 2016. Throughout his time as an employee of the Respondent the Complainant never received contemporaneous payslips, his wages were always incorrect and in arrears, they were delivered to him via bank transfer on irregular dates. His complaints in these regards were not properly addressed. He did not receive his payslips until after his employment had terminated. The Complainant contends that there are significant discrepancies in the data provided by the Respondent via payslips, when compared to the Complainant's bank accounts. The Complainant maintains that the discrepancies between the payslips (provided retrospectively) and the payments made to his bank account are such that it is impossible to decipher them. The Complainant also submits that he never received holiday pay which he accrued during his employment. The Complainant also submits that he was not given 1 weeks' notice of the termination of his employment and seeks payment in lieu of same. The Complainant's claim therefore, having accepted a 20% flat deduction to cover tax, is for: (1) Shortfall in Net Wages Payable €11,222 (Approximately) (Based on €26,478 gross – 20%) (2) One week's Notice Net €400 (Based on €500 – 20%) (3) Holiday pay 8% of gross €1,726 (Based on 42,158 – 20%) Total Outstanding €13,348
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Summary of Respondent’s Case:
The Respondent did not attend the hearing.
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Findings and Conclusions:
Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— 1. the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, 2. 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 3. in the case of a deduction, the employee has given his prior consent in writing to it. From the evidence submitted by the Complainant, I can only conclude that the Respondent’s attention to the appropriate remuneration of the Respondent in a timely and proper manner, in line with his statutory obligations in this regard, left a lot to be desired. There is uncertainty over the exact amount of wages unpaid and the Complainant did indicate that the figure of €11,222 might be somewhat of an overestimate. As this is a complaint made pursuant to the Payment of Wages Act my role is, therefore, to determine whether the Complainant is entitled to redress pursuant to that Act. In this case the uncontroverted evidence is that the Complainant is entitled to redress. Taking into account the uncertainty involved in calculating the loss I believe that an estimate of €8,000 for a shortfall in wages is prudent. The claims for payment of notice and holiday do not fall within the scope of this Act.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have found the complaint is well founded as respects the unlawful deductions from the Complainant’s wages. I direct the Respondent to pay the Complainant compensation of €8,000, less any lawful deductions, within 6 weeks of the date of this Decision.
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Dated: 15/01/18
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Wages, deductions, statutory obligations. |