Complainant

Respondent

Anonymised Parties

A shop assistant

A grocery shop

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015763-001

13/11/2017

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

CA-00015763-002

13/11/2017

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

CA-00015763-003

13/11/2017

The complainant is a Brazilian student and she had a job in the respondent’s store, working around 30 – 35 hours per week as a shop assistant. She worked from July 26th until October 9th 2017, when she left the job of her own accord. Her complaint is that she was not paid her final wages for the hours she worked in the week ending on October 9th and she wasn’t paid holiday pay in respect of the entire period of her employment, during which she did not take any holidays.

Having left the employment of the respondent on October 9th 2017, the complainant said that she was due to be paid in respect of her last week’s work in the following week. She said she called to the shop where she had been employed a number of times after she left, but the respondent refused to pay her. Following several visits, she was given her final payslip which shows that she is entitled to wages of €222.00 and holiday pay of €219.50. She submitted a copy of the payslip at the hearing and although it is clear about the hours worked and the payments due, the complainant was not paid. On the final occasion that she called to the store, she was accompanied by her flatmate. When the flatmate enquired about the complainant’s wages, she said that the respondent punched him.

When questioned about the method of pay, the complainant said that she was paid in cash from the date that she commenced employment, and her payslip states that the payment method is “cash.” PRSI and USC were deducted from her salary and she received a P45 recording her gross pay and all the deductions made during her employment.

The respondent did attend the hearing and did not take up the opportunity to present his case in response to the complaint.

In pursuit of her entitlement to wages and holiday pay, and having failed in direct discussion with her former employer, the complainant submitted a complaint to the WRC under section 27 of the Organisation of Working Time Act. As a complaint of non-payment of wages and holiday pay, the complaints should have been properly submitted under the Payment of Wages Act 1991.

The complainant is a foreign national and she did not have the benefit of legal advice while submitting her on-line complaint form. She explained that she assumed that she was making a complaint about the non-payment of wages, because the “drop-down” box on the complaint form gives complainants the option to select “Pay” and “Hours of Work,” but then to select the Organisation of Working Time Act as the statute under which the complaint is made.

As the respondent did not attend the hearing, I did not have the opportunity to seek his agreement with regard to a change of the legislation under which the complaint can be adjudicated on. I therefore wrote to him on March 13th 2018, to inform him of my intention to adjudicate on the complaint under section 6 of the Payment of Wages Act 1991. I asked him to write to me or to contact the WRC post-registration unit (PRU) within two weeks if he objected to this course of action. The respondent did not reply and did not contact the PRU. I therefore intend to consider the complaint as if it was submitted under the Payment of Wages Act 1991.

It is evident from the complainant’s payslip dated October 16th 2018, that she is entitled to wages and holiday pay of €441.50. At the hearing of her complaint, she stated that, despite numerous requests, she has not been paid. Her evidence was entirely credible.

The respondent is to pay the complainant the following:

Wages for 24 hours:   €222.00

Holiday pay for 23.73 hours: €219.50

Total amount to be paid to the complainant: €441.50 gross, to be paid within six weeks of the date of the issuing of this decision.

Non-payment of wages